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A  EEVIEW 

VNTI-RENT  DECISIONS: 


6*  V 


A  REVIEW 

OF 

ANTI-RENT  DECISIONS. 


101 


PREFACE. 


At  the  May  General  Term  of  the  Supreme  Court,  for  the 
Third  Judicial  District,  1857 — Wright,  Harris  and  Gould 
Justices — several  cases,  wherein  Stephen  Yan  Rensselaer, 
Robert  Christie  and  others  were  plaintiffs,  and  Peter  Ball, 
Robert  Hays  and  others  were  defendants,  some  of  which 
were  ejectment  and  others  covenant,  were  submitted  to 
the  court. 

The  ejectment  cases  were  argued,  the  other  cases  were 
not  argued  ;  the  court  declining  to  hear  argument  therein, 
upon  the  ground  that  the  decision  in  the  Bonesteel  case,  (21 
Barb.,  365,)  was  regarded  a  finality  ;  remarking,  how- 
ever, that  they  would  re-examine  that  case,  and  if  found 
untenable,  would  order  re-argument  of  the  covenant  ques- 
tion. The  cases,  thus  submitted,  were  held  by  the  court 
until  May  General  Term,  1858,  when  they  were  decided 
adversely  to  the  defendants. 

Although  the  positions  in  the  Bonesteel  case  were  aban- 
doned in  making  the  decisions,  yet  re-argument  was  not 
ordered  ;  and,  contrary  to  precedent,  the  decisions  were 
made  upon  grounds  not  taken  nor  discussed  by  counsel  on 
either  side. 

The  opinions  were  placed  by  the  Judges  in  the  hands  of 
plaintiffs'  counsel  and  soon  thereafter  published  in  the 
Albany  Atlas  &  Argus,  as  61  Anti-Rent  Decisions." 

Immediately  upon  the  publication,  a  review  thereof  was 
published  in  the  same  paper.  No  other  resource  was  left 
to  the  defence.    Silence  would  have  been  construed  into 


4 


acquiescence  in  doctrines,  false  in  theory,  and  unsupported 
upon  principle,  or  by  authority.  Those  reviews  are  now 
re-published,  in  connected  form,  for  examination  and  refer- 
ence. 

The  following  positions  will  be  found  settled  law  : 

(1.)  That  there  is  no  rent,  and  consequently  no  landlord 
and  no  tenant,  without  a  reversion. 

(2.)  That  the  reversion  of  lands,  held  in  fee,  is  in  the 
State,  and  not  elsewhere. 

(3.)  That  an  individual  cannot  create  a  fee  ;  and  no  power 
can  create  a  fee,  except  the  State  in  its  sovereign  capacity. 

(4 )  That  an  individual  may  assign  or  sell  a  fee  ;  but  can- 
not lease  in  fee. 

(5.)  That  covenants  and  conditions  can  be  attached  to  a 
fee,  only,  at  the  time  of  its  creation.  Hence  an  individual 
cannot  attach  covenants  and  conditions  to  a  fee. 


A  REVIEW  OF  "  ANTI-RENT  DECISIONS/' 


Number  I. 

The  decision  of  the  Conrt  of  Appeals  in  the  De  Pejster  case  —  Points  of  the 
decision  and  their  application  to  all  deeds  in  fee  made  after  1776  —  The 
law  of  the  State  settled  in  that  respect  —  Different  from  the  common  un- 
derstanding —  That  decision  affected  all  covenants  and  conditions  alike  — 
Attempt  of  the  Supreme  Court  to  overrule  that  decision  —  The  cases 
before  the  latter  Court  and  the  manner  of  submission  —  The  first  section 
of  tho  Statute  of  1787  concerning  tenures  declared  by  the  Court  of  Appeals 
to  have  been  substantially  the  English  Statute  quia  emptores  ;  and  to  have 
had  effect  upon  all  deeds  in  fee  made  after  1776  -^Decision  by  the  Supreme 
Court,  that  th&t  Statute  never  had  any  existence  here. 

In  1852,  the  Court  of  Appeals  decided  that  all  deeds  in 
fee  made  by  individuals  after  the  4th  day  of  July,  1776, 
left  the  grantors  strangers  to  the  granted  premises  without 
estate  or  interest  therein.  Reservations  of  rent  with  pro- 
visions of  distress  and  re-entry  were  not  allowed  to  have 
any  effect  upon  the  character  of  the  deeds,  or  upon  the 
quantity  and  quality  of  the  estates  conveyed  ;  nor  was  the 
Manor  of  Rensselaerwick  or  any  other  part  of  the  State, 
allowed  to  be  an  exception  to  the  rule. 

That  decision  was  applied  at  the  time  to  three  different 
cases,  all  within  the  so-called  Manor  of  Rensselaerwick — 
See  De  Peyster  vs.  Michael,  2  Selden,  467 — They  were  ac- 
tions in  ejectment,  brought  by  different  plaintiffs,  claiming 
to  recover  as  landlords,  for  the  non-performance  of  coven- 
ants and  conditions  nominated  in  the  deeds,  whereby  the 


6 


premises  had  been  conveyed  in  fee  about  seventy  years 
before.  The  decision  was  made  to  turn,  not  upon  any 
peculiarity  of  the  covenants  and  conditions,  not  upon  the 
point  that  they  were  illegal  and  void  when  occurring  be- 
tween landlord  and  tenant,  not  upon  the  point  that  they 
were  contrary  to  public  policy  and  therefore  void,  but 
solely  and  exclusively  upon  the  ground  that  the  grantor, 
after  executing  the  deeds  had  no  reversion  or  estate  left 
in  the  premises,  did  not  make  himself  the  landlord,  and 
could  not  therefore  impose  or  fasten  thereon  conditions  or 
covenants  of  any  kind.  For  the  want  of  the  reversion, 
the  grantor  was  adjudged  to  be  a  stranger  to  the  land, 
instead  of  its  lord,  and  the  grantee  to  be  the  owner  instead 
of  the  tenant. 

The  result  was  held  to  have  followed  as  a  consequence 
to  the  re-enactment  here  of  the  English  statute  quia  emp. 
tores.  By  the  common  ,or  feudal  law,  it  was  not  denied 
but  that  conditions  in  restraint  of  alienation  could  be  im- 
posed upon  grantees  in  fee. 

The  grounds  of  the  decision  are  stated  in  five  distinct 
resolutions : 

(l  1.  That  conditions  in  restraint  of  alienation  are  of 
feudal  origin,  and  depended  on  feudal  tenure.  They  were 
good  wherever  the  grantor  had  the  escheat  or  reversion. 

"  2.  That  they  were  good  before  the  statute  quia  emp- 
tores,  because  the  grantor  at  that  time  was  the  feudal  lord 
and  had  the  reversion  ; 

"  3.  That  since  the  statute  they  are  bad,  because  the 
escheat  or  reversion  was  thereby  taken  away  from  the 
grantor. 

"  4.  That  they  are  good  in  case  of  the  King,  since  the 
statute,  as  before,  because  the  statute  does  not  take  the 
escheat  from  the  Crown. 

{i  5.  That  the  possibility  of  reverter  spoken  of  by  Lord 
Coke,  is  the  right  to  the  escheat  and  nothing  more  nor 
less." 


7 


That  decision  settled  the  law  of  the  State  differently 
from  what  it  had  been  supposed  to  be  before  that  time. 
It  had  been  assumed — never  decided — that  the  statute 
quia  emptores,  was  not  re-enacted  here,  and  that  conse- 
quently the  common  law  rule  of  tenures  was  in  force. 
Upon  that  assumption  rents  had  been  enforced  upon  grants 
in  fee  in  the  same  manner,  upon  the  same  theory  and  by 
the  same  rules,  as  upon  leases  for  lives  and  for  years. — 
They  had  never  been  enforced  or  demanded  upon  any 
other  assumption.    The  common  law  relations  of  landlord 
and  tenant  were  held  to  exist  and  the  rent  was  therefore 
the  rent  service  of  the  common  law — See  Yan  Rensselaer 
vs.  Bradley,  3  Denio,  135 — No  case  can  be  found,  in  this 
State  at  least,  recognising  any  other  relations  of  lord  and 
tenant,  than  those  of  the  common  law.    That  is,  two 
estates  have  always  been  required  to  constitute  that  rela- 
tion ;  the  reversion  in  the  one  party  and  the  tenancy  held 
thereof  in  the  other.    Instead  of  the  creation  of  such  rela- 
tions by  statute  differently  from  the  common  law,  it  has 
been  repeatedly  and  uniformly  held,  that  our  statutes 
whenever  they  use  the  word  rent  and  the  terms  landlord 
and  tenant,  use  them  according  to  the  common  law 
meaning  and  not  otherwise.    The  authorities  to  this  point 
will  be  noticed  in  the  course  of  this  review.    When,  there- 
fore, the  court  determined  that  the  defendants  were  right 
in  the  position  that  the  common  law  relations  of  landlord 
and  tenant  did  not  exist  between  these  parties,  they  de- 
termined the  actions  in  favor  of  the  defence,  unless  they 
can  show  that  the  statutes  have  authorized  the  constitu- 
tion of  such  relations  upon  a  different  footing  from  the 
common  law.    This  they  have  attempted  to  do.  Judge 
Gould  alludes  to  it  in  the  opening  of  his  opinion  as  a 
discovery  made  in  the  law  of  this  State.    It  is  true  no  de- 
cision of  the  kind  can  be  found  of  an  older  date.    And  if 
the  court  be  correct  in  the  doctrine  that  our  statutes  have 
placed  those  who  own  lands  and  those  whe  do  not,  on  the 


8 


same  footing  in  regard  to  rents,  it  may  prove  to  be  an  in- 
novation of  importance. 

Heretofore,  it  has  been  only  upon  the  assumption  of  the 
common  law  relations  of  lord  and  tenant,  that  rents  have 
been  enforced.  At  common  law,  the  grantor  in  fee,  was 
just  as  much  the  lord  of  the  soil  as  the  lessor  for  years, 
and  the  rules  of  landlord  and  tenant  applied  as  rigidly  in 
the  one  case  as  in  the  other.  The  statute  quia  emptores 
changed  the  common  law  as  to  grants  in  fee,  so  that  the 
grantor,  instead  of  having  the  reversion  left,  parted  with 
his  entire  estate.  That  statute  was  pronounced  to  have 
been  in  force  in  this  State  from  1776,  and  to  have  pro- 
duced the  same  effects  upon  the  laws  thereof  as  had  been 
produced  upon  the  English  laws  by  the  English  act. — 
Hence  it  was  obvious  that  an  action  could  not  be  sustained 
against  the  grantee  of  the  covenantor,  for  rent  any  more 
than  for  sale  money.  The  one  covenant  had  no  greater 
capacity  for  running  with  the  land  than  the  other.  The 
parties  were  not  in  the  relation  of  lord  and  tenant,  and  {he 
covenant  was  not  for  rent,  but  for  purchase  mone}r,  what 
ever  it  might  be  denominated  in  the  deed. 

After  the  decision  of  the  De  Peyster  case,  actions  were 
brought  to  enforce  the  collection  of  rents,  as  they  are 
called,  and  defences  were  interposed  based  upon  that  deci- 
sion. The  question  was  submitted  to  the  general  term  of 
the  Supreme  Court  of  the  Third  District  in  December, 
1855,  upon  the  argument  of  Counsel.  Judges  Harris  and 
Wright  were  the  only  members  of  the  court  present.  The 
decision,  was  announced  in  October  1856,  and  is  reported, 
Van  Rensselaer  v.  Bonesteel,  24  Barb  p.  365.  In  the  time 
intermediate  its  submission  and  decision,  another  case 
presenting  the  same  questions  was  argued  before  Judge 
Gould  at  Special  Term,  and  decided  by  him. — See  Maine 
v.  Feathers,  21  Barb.  646. — Referring  to  that  case,  in  his 
opinion  under  review,  he  truly  remarks,  that  but  little  ar- 
gument was  ma^ie.    But  little  as  there  was,  it  was  the  only 


9 


argument  ever  made  upon  the  covenant  question,  when 
Judge  Gould  was  present.  He  was  not  a  member  of  the 
court  when  the  Bonesteel  case  was  argued.  The  cases  thus 
far  were  all  upon  the  covenants.  They  are  referred  to 
now,  merely  to  remark  a  peculiarity  which  has  characte- 
rized the  judicial  practice  in  the  disposition  of  this  class 
of  actions.  In  each  case  the  decision  has  been  put  upon 
points  not  discussed,  nor  suggested  by  counsel,  and  no 
two  cases  are  placed  upon  the  same  grounds. 

At  the  May  General  Term,  1857,  the  ejectment  question 
was  argued  before  Wright,  Harris  and  Gould,  Justices. 
The  latter  was  present  only  during  the  opening  argument. 
Papers  were  handed  up  in  the  covenant  cases,  Harris  and 
Wright,  Justices,  only  being  present.  They  declined  to 
hear  argument,  assigning  as  the  reason,  that  the  court  had 
passed  upon  the  question  in  Van  Rensselaer  vs.  Bonesteel, 
and  regarded  the  opinion  in  that  case  conclusive.  They 
however  took  the  papers,  with  a  view,  as  stated  at  the 
time,  of  allowing  a  re-argument,  should  they  on  further 
examination  entertain  doubts  of  the  soundness  of  the 
Bonesteel  opinion.  These  cases  are  the  ones  decided  in 
May  1858. 

The  two  opinions,  are  very  similar  in  their  positions  and 
reasoning.  The  points  made  by  counsel  for  Plaintiffs  are 
not  even  noticed.  The  decisions  are  placed  upon  grounds 
directly  in  conflict  with  the  positions  occupied  by  the  same 
Judges  in  Maine  vs.  Feathers  and  Yan  Rensselear  vs. 
Bonesteel. 

In  the  Bonesteel  case,  Judge  Harris  admitted  the  cor- 
rectness of  the  point,  that  the  plaintiff  had  no  estate  in 
the  premises,  and  that,  therefore  the  parties  were  not  land- 
lords and  tenants.  His  language  is,  si  The  fallacy  of  the 
argument  in  support  of  the  demurrer,  lies  in  the  position 
assumed  by  the  defendant's  counsel,  that  there  must  be  not 
only  privity  of  estate  between  the  covenanting  parties, 
but  also  between  the  plaintiff  and  the  defendant.  It  was 
2 


10 


insisted  that  in  order  to  sustain  the  action  against  an  as- 
signee, the  plaintiff  must  still  have  some  reversionary  in- 
terest in  the  land,  as  in  the  case  of  landlord  and  tenant  — 
But  this  is  not  requisite ;  it  is  enough  that  at  the  time  of 
making  the  covenant  an  estate  passed  between  the  coven- 
anting parties." 

In  the  opinions  under  review,  Judge  Harris  now  admits, 
that,  "  A  covenant  to  enure  to  the  benefit  of  a  stranger  to 
the  estate  would  not  run  with  the  land  as  to  its  charge  or 
burden.  So,  also,  it  seems  theoretically  plausible  that  if 
a  grantor  conveys  his  whole  estate,  reserving  nothing  of 
the  estate  or  the  lands  in  himself,  he  cannot  charge  or 
burden  the  land  in  the  hands  of  an  assignee,  even  by  a 
covenant  in  the  deed  of  conveyance,  for  having  parted 
with  his  entire  interest,  reserving  nothing,  he  is  as  much 
a  stranger  to  the  land  as  though  he  had  never  owned  it, 
and  has  no  estate  to  which  the  covenant  can  attach." 

Again  in  the  same  opinion  he  agrees  that. 

(t  A  still  further  concession  may  be  made  that  unlebS  the 
British  Statute  of  quia  emptores  was  in  force  in  the  colony 
before  the  Revolution ;  or  since  the  Revolution  a  change 
has  been  wrought  in  the  common  law  precisely  equivalent 
to  the  British  Statute,  there  is  no  defence.  Unless  one 
or  other  of  these  things  appear,  the  common  law  relation 
of  landlord  and  tenant  subsisted  between  the  original 
grantor  and  grantees  ;  and  the  rent  covenant  in  the  orig- 
inal indentures  passed  as  to  its  burden  to  the  assignee  of 
the  lands." 

The  converse  of  this  is  admitted  in  both  opinions,  that 
if  the  Statute  of  quia  emptores  was  in  force  here  before  the 
Revolution,  or  if  a  change  has  been  wrought  upon  the 
common  law  since  the  Revolution,  equivalent  to  that  pro- 
duced by  the  English  Statute,  there  is  a  good  defence  and 
the  assignee  or  grantee  of  the  lands  is  not  liable  upon  such 
covenant. 


11 


This  is  the  true  point  of  the  cases  under  review  as  they 
were  presented  to  the  court.  And  here  the  reader  should 
understand  that  it  is  not  the  mere  point  of  counsel  for  de- 
fence, it  is  not  a  point  originated  or  first  announced  by 
Bingham  and  Colvin,  as  the  claimants  have  labored  so  much 
to  have  the  public  believe ;  but  it  is  the  point  decided  by 
the  Court  of  Appeals  in  De  Peyster  vs.  Michael,  hereto- 
fore referred  to.  That  Court  there  decided  that  Statutes 
precisely  equivalent  to  the  English  Statute  quia  emptores 
had  been  enacted  here  and  had  continued  to  be  and  were 
still  in  force,  and  had  produced,  and  were  still  producing 
the  same  effect  upon  our  laws  as  the  English  act  did  upon 
the  English  laws.  In  the  opinion  of  Judges  Harris  and 
Wright  the  language  of  Judge  Ruggles  in  the  De  Peyster 
case  is  quoted  as  follows.  Referring  to  our  statutes,  he 
said : 

"These  statutes  performed  the  same  functions  and 
wrought  the  same  changes  in  the  feudal  tenures  of  this 
State  as  the  statute  of  quia  emptores  did  in  England.  They 
put  an  end  to  all  feudal  tenure,  between  one  citizen  and 
another,  and  substitued  in  its  place  a  tenure  between  each 
landholder  and  the  people  in  their  sovereign  capacity." — 
They  might  have  quoted  further  to  the  same  effect,  for  in 
the  same  connection, — Judge  Ruggles  said  of  our  statutes, 
"  and  they  placed  the  law  of  this  State,  in  respect  to  the 
question  in  controversy  upon  the  same  footing  on  which 
the  law  of  England  now  stands,  and  has  stood  since  the 
reign  of  Edward  the  First." 

There  is  another  feature  of  the  opinions,  which  deserves 
a  passing  notice  in  this  connection.  They  base  the  decision 
upon  the  point  that  the  reservation  of  rent  changed  the 
character  of  the  deed  in  question  and  the  estates  of  the 
respective  parties  ;  and  they  put  forth  the  idea,  that  this 
is  a  point  overlooked  by  the  Court  of  Appeals  and  dis- 
covered by  them.  The  reader  should  be  disabused  of  this 
impression  before  following  their  argument  further.  Such 


12 


a  point  was  distinctly  made  in  the  De  Peyster  case  and 
distinctly  passed  upon.  In  the  opinion  of  Judge  Ruggles, 
already  quoted  from,  he  says  :  "  A  rent  is  not  a  reversion  " 
— 2  Selden.  p.  506 — Again,  "  The  rent  and  the  right  to  re- 
enter for  non-payment,  are  not  reversionary,  whatever  they 
may  be  called  in  the  lease ;  and  it  is  not  enough  to  say, 
they  resemble  or  are  analogous  to  such  interest." 

And  again,  upon  the  same  page,  he  says :  "The  argu- 
ments above  referred  to,  in  favor  of  the  condition  to  pay 
sale  money,  are  founded  on  the  proposition  that  the  reser- 
vation of  rent  and  the  right  of  re-entry  are  interests 
in  the  land  remaining  in  the  lessor,  analogous  to  a  rever- 
sion and  equivalent  for  that  purpose.  The  argument  is  an 
attempt  to  introduce  a  new  reason ;  never  heretofore  re- 
garded as  sufficient,  for  supporting  the  condition.  The 
reasoning  from  analogy  is  still  more  frail  and  feeble." 

This  applies  with  equal  force  and  propriety  to  the  rea- 
soning of  the  opinions  under  review.  The  idea  that  a  party 
may  have  an  estate  in  lands  for  one  purpose,  but  for  another 
none  at  all,  would  be  too  absurd  to  demand  an  answer. 

The  point  once  decided,  as  it  has  been  by  the  Court  of 
last  resort,  that  the  statute  quia  emptores  was  in  force,  and 
that  no  tenure  can  exist  between  individuals  upon  grants 
in  fee,  it  is  a  rule  which  has  had  no  exceptions,  that  estates 
in  fee,  cannot  be  burdened  with  covenants  and  conditions 
of  any  kind  or  character.  No  such  thing  was  ever  at- 
tempted until  the  cases  of  Maine  v.  Feathers,  and  Yan 
Rensselear  v.  Bonesteel,  herein  before  cited.  Those  posi- 
tions are  now  abandoned.  The  decisions  are  not  however 
changed.  The  former  ground  is  relinquished  only  to  sub- 
stitute another.  Before,  the  effort  was  to  avoid  the  effects 
of  the  De  Peyster  case.  Now,  the  doctrine  of  that  case 
is  directly  attacked.  In  the  majority  opinion,  it  is  done  in 
the  following  unequivocal  language ;  "  The  statute  of  quia 
emptores  destroyed  tenure  as  between  feoffor  in  fee,  and 
feoffee,  changing  rents  service  into  rents  charge,  and  as  is 


13 

claimed,  constituting  the  grantor  in  fee  in  effect  a  vendor, 
instead  of  the  landlord,  and  the  grantee,  the  vendee,  in- 
stead of  a  tenant.  That  statute  never  had  any  existence 
here." 

This  reduces  the  contest  to  a  single  point ;  whether  the 
Court  of  Appeals  shall  overrule  the  decision  in  the  De 
Peyster  case  to  sustain  the  judgments  in  the  cases  under 
review,  or  whether  it  shall  adhere  to  that  decision  and  re- 
verse those  judgments. 


# 


Number  II. 


The  first  section  of  the  Statute  of  1787  concerning  tenures,  conceded  to  be 
substantially  the  Statute  quia  emptores  —  It  is  conceded  that  the  actions 
could  not  be  maintained  in  England  because  of  that  Statute  —  Question, 
whether  Statutes  substantially  alike  produce  here  the  same  effects  as  in 
England — Decisions  of  the  Supreme  Court  and  Court  of  Appeals,  holding 
the  effects  to  be  the  same  —  Decisions  under  review  holding  the  contrary 
—  The  Statutes  quoted  —  Mistaken  assumption  of  fact  and  its  conse- 
quences—  The  5th  section  of  the  Statute  of  tenures  —  Its'  effect  as  de- 
clared by  the  Court  of  Appeals  —  Its  effect,  claimed  by  the  Supreme 
Court  —  The  purpose  of  that  Statute  and  the  reason  of  its  adoption  — 
Views  of  the  Revisers  thereupon  and  the  reason  why  the  section  was 
omitted  in  the  Revised  Statutes. 

Notwithstanding  the  Judges — Harris,  Wright  and  Gould 
— take  ground  that  the  statute  quia  emptores  was  never  in 
force  in  this  State,  and  make  that  position  the  turning 
point  of  the  decisions,  it  is  conceded  by  them  that  the  first 
section  of  our  act  concerning  tenures  of  1787,  was  sub- 
stantially a  transcript  of  that  statute.  It  is  further  con- 
ceded that  if  the  first  section  had  been  left  unaltered  by  a 
subsequent  section,  it  would  have  performed  upon  our 
laws  the  same  effect  which  the  original  act  had  produced 
upon  the  laws  of  England,  and  the  actions  could  not  be 
maintained.  The  language  of  the  majority  of  the  court  to 
that  effect  has  already  been  quoted.  Judge  Gould  makes 
a  similar  concession.  He  says :  "  When  the  statute  quia 
emptores  was  passed  in  England,  the  policy  of  that  law 
was  held  to  be,  to  discourage  all  relations  between  the 
grantor  of  land  and  the  grantee,  which  could  in  any  way 
impair  or  restrain  the  estate  granted  to  the  latter ;  and 
consequently  that  policy  called  the  convenants  of  the 
grantor -personal,  and  not  binding  the  lands  in  the  hands 
of  the  assignee." 


15 


The  question  is,  therefore,  not  whether  the  statute  of 
quia  emptores  was  enacted  here,  but  whether  it  produced 
the  same  results  here  as  in  England.  In  Overbagh  vs. 
Patrie,  8  Barb  28,  the  Supreme  Court  decided  that  it  did. 
Mr.  Justice  Parker,  in  delivering  the  opinion,  reviewed  the 
previous  cases  and,  upon  full  discussion,  declared  that 
statute  to  have  been  enacted  here  in  1787,  and  to  have  had 
the  full  effect  of  the  English  act.  His  associates  concurred 
with  him.  Judge  Wright  was  one  of  his  associates.  That 
decision  was  subsequently  affirmed  by  the  Court  of  Ap- 
peals, at  the  same  time  of  the  De  Peyster  case. — (See  2  Sel. 
510.) 

In  the  cases  under  review,  the  three  Judges  dissent  upon 
that  point  from  the  decisions  of  the  Supreme  Court  and 
the  Court  of  Appeals.  They  place  their  dissent  upon  the 
assumption  that  our  act  concerning  tenures  of  1787  con- 
tained a  provision  or  provisions,  in  the  5th  section  thereof, 
not  found  in  the  English  statutes.  In  taking  that  position 
they  of  course  assume  the  responsibility  of  proving  it  to  be 
true  in  fact.  To  make  good  the  ground  they  take,  they 
must  show  statutes  different  from  the  English  statutes.  It 
is  an  important  assumption,  for  it  is  made  the  foundation 
of  their  decisions,  if  they  have  any  foundation  If  false  in 
fact,  if  our  statutes  are  substantially  like  those  of  England, 
then  confessedly  there  is  no  foundation  upon  which  to 
rest  the  decisions  made. 

Upon  this  point  there  is  no  room  for  dispute.  The  5th 
section  of  our  act,  which  is  relied  upon,  is  substantially  a 
transcript  of  an  English  statute  in  force  in  England  for  al- 
most two  hundred  years. 

That  the  reader  may  judge  for  himself,  a  copy  of  each 
statute  is  given.  The  5th  section  of  the  act  of  1787,  relied 
upon,  is  as  follows  : 

u  Provided,  nevertheless,  that  this  act  or  anything  here- 
in contained,  shall  not  take  away  nor  be  construed  to  take 
away  or  discharge  any  rents  certain  or  other  services  in- 


16 


cident  or  belonging  to  tenure  in  common  socage,  due  or  to 
grow  due  to  the  people  of  the  State,  or  any  mean  lord,  or 
other  private  person,  or  the  fealty  or  distress  incident 
thereunto." 

This  was  substantially  a  transcript  of  the  5th  section  of 
the  English  statute,  12  Chas.  2  c.  24.  The  latter  was  as 
follows : 

"  Provided,  nevertheless,  &c,  That  this  act  or  anything 
herein  contained,  shall  not  take  away,  nor  be  considered 
to  take  away,  any  rents  certain,  heriots  or  suits  of  court 
belonging  or  incident  to  any  former  tenure  now  taken 
away  or  allowed  by  virtue  of  this  act,  or  other  services  in- 
cident or  belonging  to  tenure  in  common  socage,  due  or  to 
grow  due  to  the  king's  majesty  or  mense  lords,  or  other 
private  person,  or  the  fealty  and  distresses  thereunto  ;  and 
that  such  relief  shall  be  paid  in  respect  of  such  rents  as  is 
paid  in  case  of  a  death  of  a  tenant  in  common  socage." 

It  is  thus  evident  that  the  Judges  should  have  ordered 
re-argument  upon  rinding  a  point  not  taken  by  counsel, 
which  struck  them  as  material  and  controlling.  Usual 
practice,  as  well  as  prudence,  might  have  been  safely  con- 
sulted in  that  way. 

Had  the  point  been  suggested  and  submitted  to  the 
argument  of  counsel,  the  court  would  probably  not  have 
fallen  into  so  gross  a  mistake  as  the  assuming  the  5th  sec- 
tion of  the  act  of  1787  to  be  an  original  section.  They 
might  not  then  have  found  in  that  section,  as  they  now 
profess  to  have  done,  the  foundation  whereupon  to  re- 
construct the  feudal  system  without  feudal  tenures. 

They  made  as  great  a  mistake  in  assuming  that  therein 
was  a  fact  overlooked  by  the  Court  of  Appeals  in  the  Do 
Peyster  case.  That  section  was  presented  to  the  attention 
of  that  court,  and  every  effect  upon  the  grants  in  question 
claimed  for  it,  which  could  be  claimed ;  and  the  court 
denied  that  it  could  save  the  lands,  or  any  thing  of  a  real 
estate  character  therein.  The  opinion  of  the  court  was 
expressed  by  Ruggles,  then  the  presiding  Judge. 


17 


In  regard  to  the  5th  section  he  said  (page  503)  : — "The 
5th  section  saves  to  the  mesne  lords  the  fealty  and  feudal 
services  due  to  them  on  conveyances  made  before  the 
4th  of  July,  1776." 

Again  upon  the  same  point,  page  504  : 

"The  5th  section  declares  that  the  act  shall  not  be  con- 
strued to  take  away  the  rents  and  service  due  to  tenure  in 
free  and  common  socage  from  the  person  previously  en- 
titled to  them,  or  the  fealty  or  distress  incident  to  that 
tenure." 

Again  upon  the  same  page  : 

"As  to  lands  granted  in  fee  by  the  proprietors  of  the 
patent  before  the  Revolution,  the  escheat  became  after- 
wards vested  in  the  people  of  the  State  by  the  operation 
of  the  statute  of  tenures  as  soon  as  they  changed  hands  by 
conveyances  in  fee,  if  not  immediately  upon  the  passing 
of  the  act." 

Thus  it  appears  that  the  Court  of  Appeals,  all  the  judges 
concurring,  denied  to  the  5th  section  any  effect,  except 
upon  grants  in  fee  made  before  the  revolution.  What 
might  have  been  the  effect  upon  deeds  of  a  date  before 
that  time,  was  not  determined,  nor  was  it  necessary  to  de- 
termine. The  effect  upon  anterior  deeds  was  also  immate- 
rial in  the  cases  under  review. 

Aside  from  the  decision  of  the  De  Peyster  case,  it  is 
difficult  to  perceive  how  the  learned  judges  so  misconceiv- 
ed the  origin  as  well  as  the  meaning,  and  intention  of  the 
5th  section  of  the  act  of  1787,  concerning  tenures.  There 
was  no  precedent  to  lead  them  to  such  misapprehensions. 
The  same  section  was  made  a  part  of  the  laws  of  England 
in  1660,  now  almost  two  centuries  ago.  It  has  been  in  force 
there  ever  since.  No  one  denies  but  that  it  was  adopted 
here  for  the  same  purpose  for  which  it  had  been  enacted 
there.  It  was  a  saving  clause  there  and  a  saving  clause 
here,  but  in  neither  country  intended  to  save  anything  or 
anybody  from  the  operation  of  the  statute  quia  emptores.— 
3 


18 


In  the  period  of  two  hundred  years,  no  claim  or  suggestion 
of  the  kind  has  been  made,  until  the  decisions  under  re- 
view. 

The  5th  section  was  one  of  the  sections  of  the  act  abol- 
ishing the  incidents  of  tenure  by  military  or  knight  ser- 
vice.   The  incidents  of  such  tenures  were  abolished  indis- 
criminately.   The  certain  and  the  uncertain,  the  contin- 
gent and  the  absolute,  were  served  alike.    It  was  not  the 
intention  to  abolish  feudal  tenures  where  they  existed, 
but  only  to  cut  off  the  incidents  imposed,  which  were  pe- 
culiar to  military  or  knight  service,  and  leave  them  only 
with  such  incidents  and  impositions  as  properly  belonged 
to  socage  tenures.    In  other  words,  it  was  not  the  design 
of  the  act  of  12  Charles,  2,  of  which  the  5th  section  was  a 
saving  clause,  to  take  from  parties  owning  lands  then  leased, 
with  military  incidents  imposed,  the  lands  themselves,  or 
any  estate  therein,  but  merely  to  abolish  the  incidents  of 
knight  service  and  leave  those  of  socage  tenures.  Rents 
certain  and  services  certain  were  of  the  latter  character 
and  were  therefore  saved.    The  end  of  the  whole  statute 
was  merely  to   cut  military  tenures  down  to  socage 
tenures.    The  abolishing  sections  were  sweeping  and  in- 
discriminate, and  it  was  therefore  necessary  to  have  a  sav- 
ing clause  in  order  to  save  rents  certain  and  services  cer- 
tain.   Hence  the  5th  section  of  the  English  act.    It  was 
inserted  for  the  benefit  of  the  military  lords  and  persons 
who  owned  lands  leased  upon  military  tenures,  in  order  to 
save  to  them  such  of  the  incidents  of  their  leases  as  were 
not  inconsistent  with  socage  tenure.    The  saving  section 
was  no  more  comprehensive  than  the  abolishing  or  extir- 
pating sections.    Only  those  who  had  suffered  by  the  one 
could  claim  the  benefit  of  the  other.    It  was  never  claimed, 
except  by  the  learned  judges  in  the  cases  under  review, 
that  the  saving  section  was  intended  to  vest  land  in  those 
who  had  none,  or  to  save  and  continue  estates  or  interests 
in  parties  after  they  had  conveyed  all  they  had  to  convey. 


19 


The  English  statute  quia  emptor es  took  away  nothing  ex- 
isting at  the  time  of  its  enactment.  It  did  not  affect  the 
the  past,  but  only  the  future.  It  was  no  part  of  the  pur- 
pose of  the  statute,  12  Cha.  2  c.  24,  to  modify  or  interfere 
with  its  workings,  either  past  or  future.  If  any  evidence 
was  necessary  upon  this  point,  the  history  of  English 
jurisprudence  would  be  enough. 

It  is  equally  clear  that  it  was  no  part  of  the  purpose  of 
the  5th  section  of  our  act  to  modify  or  interfere  with  the 
effect  of  the  first  section.  The  first  is  conceded  to  have 
been  substantially  the  English  Statute  quia  emptores.  It 
took  from  no  one,  but  only  prescribed  the  rule  of  the  future. 
There  was  nothing  to  save  from  it,  for  there  was  nothing 
destroyed  by  it.  The  second  and  third  sections  abolished 
military  tenures  and  all  their  incidents.  They  were  sub- 
stantially transcripts  of  the  English  statute,  12  Chas.,  2. 
Those  were  the  sections  designed  to  work  destruction,  if 
there  was  anything  existing,  which  could  thereby  be  de" 
strayed.  The  5th  section  was  inserted  as  conservative  of 
some  incidents  which  were  otherwise  to  be  destroyed  by 
the  second  a/id  third  sections.  Strike  out  those  two  sec- 
tions, and  the  5th  would  have  been  left  inoperative,  for  it 
had  no  reference  to  or  connection  with  any  other.  The 
only  practical  effect  which  it  could  have  been  made  to  pro- 
duce, was  in  case  some  lord  or  other  person  having  lands, 
held  of  him  by  military  tenure,  created  anterior  to  August 
30,  1664,  had  found  himself  deprived  of  the  incidents  of 
that  tenure  by  the  second  and  third  sections,  and  among  the 
incidents  had  been  rents  certain  and  other  services  incident 
to  socage  tenure.  To  have  saved  the  latter  incidents,  he 
could  have  relied  upon  the  5th  section.  Unless  there  may 
have  been  such  a  case  that  section  was  without  effect. 

From  nothing  else,  and  from  no  one  else,  did  the  second 
and  third  sections  take  anything  away  ;  and  in  no  other 
event  could  the  5th  section  have  been  made  to  save  any- 
thing from  being  taken  away  or  discharged. 


20 


Whether  military  tenures  ever  existed  under  the  State  or 
the  Colonial  government,  is  of  no  moment  to  the  disposition 
of  these  cases.  It  is  certain  that  no  military  tenures  ever 
existed  between  these  parties,  or  in  connection  with  the 
deeds  in  question.  If  none  ever  existed  in  the  State,  or  in 
the  Colony  before  it  became  a  State,  our  Statute  of  Tenures 
of  1787,  except  the  first  section,  was  uncalled  for,  and  has 
always  been  inoperative  for  want  of  something  to  operate 
upon. 

Such  was  the  view  taken  by  the  Revisers,  and  so  declared 
by  them.  See  Revisers  Notes,  3  R.  S.,  2nd  ed.,  p.  564. 
They  quoted  all  the  sections  of  the  act  concerning  tenures 
of  1787,  except  the  first  section.  This  included  the  5th 
section  as  a  matter  of  course.  They  then  remark  in  regard 
to  them  as  follows  : 

"  The  Legislature  of  1787,  were  engaged  in  the  delicate 
and  difficult  task  of  selecting  such  English  Statutes  as  were 
proper  to  be  re-enacted  in  this  State,  preparatory  to  the 
general  repeal  of  the  remainder.  It  is  probable  that  the 
provisions  above  quoted,  so  far  as  they  relate  to  the  ancient 
military  tenures,  were  re-enacted  merely  from  abundant 
caution  ;  for  it  is  difficult  to  perceive  any  necessity  for  the 
formal  abolition  of  tenures  and  incidents  of  tenures,  which 
never  existed  in  this  Colony." 

After  referring  to  certain  historical  and  legal  records, 
they  further  say  : 

"The  foregoing  observations  and  references  render  it 
quite  certain  that  the  military  tenures  and  their  incidents 
were  never  in  existence  in  this  Colony  ;  and  that  their 
abolition  in  1787,  was  quite  unnecessary." 

Upon  the  same  page  they  further  say  : 

"It  is  therefore  proposed  to  omit  the  sections  above 
quoted  from  the  act  of  1787,  both  as  unnecessary  in  their 
original  form,  and  as  calculated  to  produce  erroneous  im- 
pressions in  regard  to  important  historical  facts." 


21 


In  accordance  with  their  recommendation,  those  sections 
were  omitted.  Neither  before  nor  since,  until  the  decisions 
now  under  review,  has  it  been  claimed  or  held  that  the 
rights  of  property  in  lands  in  this  State,  depended  or  could 
be  made  to  depend  upon  the  existence  or  non-existence  of 
those  sections,  or  any  one  of  them.  By  these  decisions  they 
are  made  the  foundation  for  the  subversion  of  common  law 
rules  which  are  as  old  as  the  common  law  itself.  Upon  that 
foundation  it  is  claimed  that  the  legislature  at  different 
periods,  particularly  in  1788,  1805  and  1830,  have  been  im- 
proving, until  at  the  latter  period  they  consummated  the 
greatest  legal  revolution  which  has  ever  been  produced  in 
any  age  of  the  world.  First.  They  have  abolished  feudal 
tenures  ;  Second.  They  have  established  the  feudal  system 
without  feudal  tenures ;  Third.  They  have  succeeded  in 
putting  the  party  who  does  not  own  lands  upon  the  same 
footing  with  the  party  who  does,  in  regard  to  the  rents  and 
profits,  or  even  to  the  possession  of  the  premises.  This  last 
is  the  accomplishment  of  a  result  heretofore  regarded  as 
Utopian,  and  sometimes  denounced  as  agrarian.  It  is  now 
to  be  put  in  practice.  Lands  are  to  be  taken  from  parties 
who  confessedly  own  the  fee,  of  which  the  State  has  the 
reversion,  and  given  up  to  parties  who  as  confessedly  have 
no  estate  therein 

This  radical  change  in  the  rules  of  real  property  is 
worked  out,  not  from  any  express  provisions  of  the  statutes, 
but  by  the  reasoning  of  the  judges.  An  epitome  of  the 
reasoning  may  be  given  thus  :  The  first  section  of  the  act 
of  1787  is  in  substance  the  Statute  Quia  Emptores.  It 
placed  the  reversion,  of  every  fee,  in  the  State,  and  thus 
made  tenure  upon  such  grants  between  individuals  impossi- 
ble. 

The  5th  section  saved  rents  certain  and  services  certain 
incident  or  belonging  to  socage  tenure,  due  or  to  grow  due 
to  the  people  of  the  State,  or  any  mesne  lord  or  other  pri- 
vate person,  or  the  lealty  or  distresses  incident  thereunto. 


22 


From  these  premises,  they  draw  this  conclusion,  that 
rents  and  services  may  be  reserved  upon  grants  in  fee  where 
the}T  admit  there  is  no  tenure.  It  will  be  seen  that  the 
conclusion  is  utterly  unauthorized  by  the  premises  It  can 
be  accounted  for  only  in  this  way. 

Their  ideas  of  tenure  did  not  get  beyond  feudal  tenure. 
It  did  not  occur  to  them  that  there  were  other  tenures  to 
which  rents  could  be  incident  and  which  could  be  declared 
and  made  socage  tenures.  Rents  and  services  were  named, 
and,  they  perceiving  no  tenure  in  existence,  concluded 
that  the  legislature  meant  to  change  the  common  law  rule 
and  have  rents  reserved  to  parties  who  had  no  estate  or 
reversion  in  the  lands.  In  the  same  way  they  were  led  to 
apply  the  term  socage  tenure,  where  no  tenure  of  any  kind 
existed. 

They  overlooked  the  fact  that  tenure  exists  between 
every  owner  in  fee  and  the  State,  and  between  lessors  and 
lessees  for  lives  and  for  years,  and  that  such  and  such  only 
were  the  tenures  declared  to  be  socage  tenures  to  which 
rents  as  incidents  could  be  annexed,  with  the  common  law 
fealty  and  distress. 

The  same  limited  understanding  led  to  their  miscon- 
struction of  the  Revised  Statutes.  The  3d  section  1,  R.  S. 
718,  declared  all  lands  allodial  and  to  be  the  absolute  pro- 
perty of  the  owner  only  subject  to  escheat  to  the  State ; 
and  further  that  all  feudal  tenures  and  all  their  incidents 
were  abolished. 

Had  the  statute  stopped  there,  no  party  could  have  leased 
his  lands  even  for  a  term  of  years  and  have  reserved  rents, 
for  they  are  feudal  incidents  and  were  abolished.  They 
were  no  less  such  incidents  when  annexed  to  leases  for  life 
and  for  years,  than  when  annexed  to  deeds  in  fee  at  com- 
mon law.  Socage  tenure  and  tenure  by  knight  service 
applied  alike  to  all  leases.  So  the  Revisers  understood  it. 
They  referred  to  Cornell  v.  Lamb,  2  Cow.  652. 


2o 


That  was  a  case  arising  upon  a  lease  by  parol  for  a  term 
of  years.  Chief  Justice  Savage  held  that  where  the  land 
is  not  allodial  and  where  the  landlord  is  entitled  to  the 
reversion  and  to  a  rent,  he  is  authorized  to  distrain  for  rent. 
The  Revisers  say  that  this  clearly  implied  that  where  lands 
are  allodial,  the  reversioner  for  a  term  of  years  even,  could 
not  have  a  rent  \  and  they  thought  the  remark  was  made 
with  great  reason.  Accordingly  they  recommended  the 
4th  section  to  save  rents  upon  leases  for  lives  and  years  — 
This  full}'  explains  the  section  without  coming  to  the  in- 
fatuated conclusion,  that  the  revisers  and  the  legislature 
meant  to  change  the  common  law  relation  of  lord  and 
tenant  and  institute  relations  without  tenure  or  connection, 
and  thereby  fasten  the  feudal  system  upon  the  State  with- 
out feudal  tenures  ;  and  place  those  who  own  lands  and 
those  who  do  not,  <fon  the  same  footing." 

The  reasoning  of  the  opinions  in  regard  to  the  statutes 
will  be  examined  more  fully  in  another  connection.  In  the 
mean  time  other  positions  must  be  examined. 


Number  III. 

Description  of  an  estate  in  fee  under  the  feudal  law  —  The  peculiarities  of 
such  an  estate  —  The  consequent  evils  —  The  Statute  quia,  emptores,  a 
remedy  for  those  evils  —  The  character  of  the  remedy  —  Radical  and  ex- 
tirpating the  feudal  system  —  The  philosophy  of  the  Statute  quia  emptores 
—  Skilfully  designed  —  Its  direct  effect  practically  unimportant  —  Its 
indirect  and  consequential  effects,  the  ones  sought  —  Judge  Gould  admits 
the  purpose  and  effect  of  the  Statute,  but  denounces  its  policy  —  A  grant 
in  fee  under  the  Statute. 

Before  pursuing  the  examination  further,  it  is  necessary 
to  obtain  definite  and  distinct  views  of  an  estate  in  fee 
under  the  common  or  feudal  law,  and  an  estate  in  fee 
under  the  statute  quia  emptores.  The  character  of  the 
former  is  well  enough  described  in  the  language  of  the 
majority  opinion  in  the  cases  under  review.  It  is  sub- 
stantially the  description  of  the  old  elementary  writers. 
"  By  the  common  or  feudal  law,  no  grant,  whether  in  fee, 
or  for  life  or  years,  created  any  other  relation  than  that 
of  landlord  and  tenant.  A  grant  in  fee  did  not  pass  the 
right  of  property,  but  only  the  right  of  possession.  The 
grantor  remained  the  lord  of  the  soil  notwithstanding  the 
grant.  There  was  tenure  or  privity  of  estate  between  the 
grantor  and  grantee,  constituted  by  the  one  party  having 
the  right  of  property,  or  as  more  commonly  called  the  re- 
version, and  the  other  the  right  of  possession  subordinate 
to  the  reversion  or  right  of  property.  At  the  termination 
of  a  lease  for  life  or  years,  the  soil  reverted  to  the  lord, 
and  in  a  grant  in  fee  there  was  a  possibility  of  reverter 
by  escheat.  One  of  the  incidents  of  feudal  tenure  was 
escheat,  or  the  reversion  of  the  estate  on  a  grant  in 
fee  simple,  upon  a  failure  of  the  heirs  of  the  owner.  The 


25 


escheat  was  originally  called  the  reversion.  Even  if  no 
services  were  reserved  on  a  feoffment  in  fee,  there  was 
still  a  tenure  created.  The  nature  of  the  feoffer's  privity 
with  the  estate  conveyed,  whether  in  fee,  or  for  life  and 
years,  was  such  as  to  make  any  service,  charge,  or  rent 
which  he  reserved  on  the  conveyance  a  rent  service,  for 
which,  without  a  clause  of  distress  in  the  deed  under 
which  it  arose,  he  might  distrain  of  common  right.  To 
have  constituted  a  rent  service,  it  was  enough  that  a  re- 
versionary interest  remained  in  the  grantor  or  lessor;  and 
the  right  to  the  escheat  in  the  grantor  in  all  conveyances 
in  fee,  with  a  rent  reserved,  was  a  sufficient  estate  in  the 
grantor  to  constitute  privity  with  the  grantor,  and  to 
carry  the  relation  of  lord  and  tenant  to  their  respective 
assignees,  and  also  the  covenant  of  rent  or  any  other 
covenant  concerning  the  land,  along  with  the  land." 

Under  the  feudal  law  a  grant  or  lease  in  fee,  like  a  lease 
for  life  and  years,  did  not  pass  the  estate  of  the  grantor. 
It  created  another  estate  out  of  the  grantor's  and  passed 
it  subordinate  thereto.  When  the  estate  so  created  ceased 
to  exist,  the  grantor  was  again  in  of  the  same  estate  he 
held  before  creating  the  particular  estate.  Between  the 
giantor  and  grantee  in  fee,  the  former  remained  the 
owner  while  the  latter  had  merely  a  possessory  right  or 
tenancy.  The  grantee  was  enjoying  not  his  own,  but  the 
property  of  another  ;  and  for  that  enjoyment  was  bound 
to  pay  or  render  such  compensation  therefor  as  had  been 
nominated  in  the  lease  ;  and  he  was  bound  to  conform  to 
whatever  conditions  might  have  been  affixed. 

Under  the  feudal  law,  therefore,  the  tenant  in  fee  held 
the  same  kind  of  estate,  except  in  possible  time  of  dura- 
tion, as  the  tenant  for  life,  or  for  years,  and  his  rights  were 
regarded  no  more  sacred  in  character.  He  could  be  de- 
prived of  his  estate  by  the  party  of  whom  he  held,  without 
due  process  of  law.  As  to  the  owner  or  reversioner,  his 
4 


26 


estate  was  not  property,  either  within  common  law  or  con- 
stitutional protection.    It  was  otherwise  as  to  other  parties. 

By  failing  to  comply  with  the  conditions  annexed  to  his 
estate,  it  might  become  forfeited  to  the  owner  of  whom  it 
was  held,  and  taken  away  without  any  legal  process  what- 
ever. In  that  respect  his  estate  lacked  the  elements  of 
property.  No  lawyer  will  pretend  that  forfeiture  from  one 
individual  to  another  can  be  attached  to  property  by  con- 
tract of  parties  or  by  the  laws  of  the  State,  except  from  a 
tenant  to  his  lord.  A  condition  of  forfeiture,  annexed  to 
an  interest  or  estate  in  lands,  which  comes  within  the  con- 
stitutional meaning  of  property,  would  be  no  more  opera- 
tive than  a  like  condition  applied  to  life  or  liberty.  Each 
comes  in  for  a  like  claim  to  constitutional  protection. — 
This  is  a  proposition  too  familiar,  not  only  to  every  lawyer, 
but  to  every  intelligent  layman,  to  require  demonstration 
or  authority.  Let  us  repeat  it.  There  can  be  no  such 
thing  as  forfeiture  of  property  or  any  estate  therein,  from 
one  individual  to  another,  except  from  the  tenant  of  some 
particular  estate  to  the  immediate  reversioner.  It  makes 
no  difference  whether  the  condition  is  the  attempted  im- 
position of  some  contract  or  of  the  laws  of  the  State. — 
Neither  in  England  nor  in  this  country,  has  the  attempt 
ever  been  made,  to  extend  the  operation  of  forfeitures  to  any 
other  relation,  until  the  decisions  now  under  review.  Until 
these  decisions,  it  has  been  supposed  that  when  one  party 
desired  to  give  another  a  lien  upon  his  property,  whether 
real  or  personal,  he  must  first  convey  the  title.  It  has  not 
been  considered  enough  that  he  covenant  to  pay  a  certain 
sum,  and  upon  failure  that  his  property  shall  be  forfeited. 
No  lawyer  would  venture  to  claim  validity  for  such  a 
covenant  in  regard  to  the  forfeiture,  even  between  the 
parties  to  the  contract,  much  less  that  it  could  be  made  to 
operate  against  others.  Counsel  for  plaintiffs  did  not  make 
such  venture.  No  lawyer — except  the  judges  in  the  cases 
under  review — ever  advanced  such  a  doctrine.   But  the 


27 


actions  could  not  be  sustained  without,  and  as  the  law  did 
not  authorise  what,  to  their  prepossessions,  seemed  justice, 
they  ventured  upon  making  the  law  conform  to  their  stand- 
ard. For  the  sanction  of  so  bold  an  innovation  upon  the 
established  rules  of  property,  they  relied  upon  their  own 
powers  of  reasoning,  the  ignorance  which  prevails  upon 
the  subject,  the  odium  of  former  anti-rentism  and  the  almost 
loyal  devotion  among  the  people  to  every  thing  which 
emanates  from  the  judiciary.  Forfeitures,  stipulated  for 
by  parties  long  since  deceased,  were  therefore  made  to  take 
lands  from  the  owners  in  fee  and  give  them  to  parties  who 
are  conceded  to  have  no  estate  which  was  ever  before 
recognised  in  law.  They  propose  to  put  this  doctrine  in 
practice  upon  whole  towns  and  counties. 

By  the  feudal  law  estates  in  fee  were  subject  to  the  impo- 
sition of  the  conditions  of  forfeiture  in  favor  of  the  gran- 
tor and  of  the  grantees  of  his  reversion.  They  were  sub- 
ject also  to  covenants  of  every  character  allowable  between 
individuals,  so  that  parties  not  personally  privy  to  the 
covenants,  by  becoming  owners  of  the  estates  became  per- 
sonally liable  to  fulfil  the  covenants,  and  continued  so  liable 
as  long  as  they  remained  such  owners.  Tenants  for  lives 
and  years  are  still  so  liable.  The  reason  of  the  rule  is  evi- 
dent ;  they  are  enjoying  the  use  of  another's  property  and 
should  pay  therefor  according  to  the  stipulations  made 
when  the  contract  for  that  use  was  made  ;  and  should  con- 
form to  the  conditions  then  imposed  restrictive  of  the 
manner  of  using.  Under  the  feudal  law  the  reason  of  the 
rule  applied  with  equal  propriety  to  estates  in  fee,  and 
hence  the  rule  itself  was  applied.  One  of  the  consequences 
of  such  a  rule  was  that  every  transfer  of  lands  was  only 
the  creation  of  new  estates  and  might  be  the  occasion  for 
the  imposition  of  new  burdens.  This  led  to  evils  which 
called  for  legislative  remedy,  and  ended  by  the  enactment 
of  the  statute  quia  emptores. 


28 


Sir  William  Blackstone  describes  these  evils  as  follows  : 
—See  2  Bl.  Com.  p.  91: 

"  The  inferior  lords  began  to  carve  out  and  grant  to 
others  still  more  minute  estates,  to  be  held  as  of  themselves, 
and  were  so  proceeding  downwards  in  infinitum,  till  the 
superior  lords  observed  that,  by  this  method  of  subinfeu- 
dation, they  lost  all  their  feudal  profits  of  wardship,  mar- 
riage and  escheats,  which  fell  into  the  hands  of  these 
mesne  or  middle  lords,  who  were  the  immediate  superiors 
of  the  terretenant,  or  him  who  occupied  the  land  ;  and  also 
that  the  mesne  lords  themselves  were  so  impoverished 
thereby,  that  they  were  disabled  from  performing  their 
services  to  their  own  superiors.  This  occasioned,  first, 
that  provision  in  the  thirty-second  chapter  of  Magna 
Charta,  9  Hen.,  3,  that  no  man  should  either  give  or  sell 
his  land  without  reserving  sufficient  to  answer  the  demands 
of  his  lord  and  afterwards  the  statute  of  quia  emptores. 

Previous  to  the  last  named  statute,  a  tenant  in  fee  could 
not  assign  or  alienate  his  fee  or  tenancy  without  license 
from  his  immediate  lord.  The  reason  was,  as  expressed 
by  Blackstone, li  lest  thereby  a  feeble  or  suspicious  tenant 
might  have  been  substituted  and  imposed  upon  him  to 
perform  the  feudal  services,  instead  of  one  on  whose  abili- 
ties and  fidelity  he  could  depend." — 2  Bl.  Com.,  287 — He 
was  at  liberty  however  to  create  a  fee  to  beheld  of  himself, 
whereupon  he  could  impose  covenants  and  conditions  in 
his  own  favor.  He  thereby  made  himself  the  lord  of 
another  tenancy.  This  was  subinfeudation  Each  tenant 
in  his  turn  could  make  himself  the  lord  of  some  other 
tenant.  Each  reserved  to  himself  rents  from  his  imme- 
diate tenant.  The  only  source  whence  the  means  to  pay 
could  be  acquired  was  from  the  annual  product  of  the  land. 
Erom  those  productions  each  tenant  must  retain  enough 
to  support  himself  and  his  family  in  addition  to  paying  his 
rent.  His  immediate  landlord  must  do  the  same,  besides 
paying  rent  to  his  immediate  lord  ;  and  so  on  through  the 


29 


whole  series  of  lords  and  tenants.  The  number  of  these 
relations  increased  with  every  grant  in  fee,  and  as  each 
set  of  estates  was  perpetual,  they  never  decreased.  In 
time,  more  families  became  dependent  upon  the  lands  than 
their  productions  would  support.  When  they  had  arrived 
at  that  point,  every  further  addition  to  such  relations  re- 
sulted in  want  to  some  of  the  dependents.  Contrary  to 
usual  vicissitudes,  those  last  in  the  series  and  lowest  in 
the  scale  of  society,  fared  best,  because  they  were  first 
supplied.  Want  and  destitution  overtook  the  lords  fore- 
most in  the  series,  because  they  were  the  last  reached  in 
the  order  of  distribution ;  and  when  the  whole  stock  was 
consumed  in  supporting  lords  of  younger  date,  there  was 
nothing  to  distribute.  The  immediate  tenants  who  were 
personally  obligated  to  pay,  became  so  poor  that  payment 
could  not  be  enforced. 

To  remed3^  this  evil  the  chief  lords  first  procured  the  ex- 
periment of  requiring  each  mesne  lord  to  reserve  enough 
for  all  the  lords  of  preceding  date.  The  experiment  failed. 
They  them  enacted  the  statute  quia  emptores,  which,  in  the 
end,  produced  frhe  remedy  desired. 

That  statute  merely  prodded  that  every  freeholder  might 
give,  sell  or  alien  the  lands  whereof  he  was  seized  in  fee 
simple,  whenever  he  pleased,  but  the  purchaser  should  hold 
the  lands  so  sold  or  aliened  of  the  same  chief  lord,  of  the 
same  fee,  and  by  the  same  services  as  his  donor  or  alienor 
had  before  held  them. 

Simple  as  this  was  in  its  provisions,  it  was  peculiarly 
efficient  for  the  accomplishment  of  the  purpose  designed. — 
It  could  not  be  violated  because  it  was  made  impossible  to 
violate  it.  Thereafter,  it  became  impossible  to  perpetrate 
the  mischief  for  the  prevention  of  which  the  statute  was 
enacted.  Parties  were  at  liberty  to  make  just  such  deeds, 
with  just  such  covenants  and  conditions,  as  they  had  before 
made,  but  the  deed  was  only  an  asignment  of  a  previously 
existing  fee  or  tenancy,  and  not  the  creation  of  a  new  fee 


30 


or  tenancy,  as  before  it  bad  been  ;  and  the  covenants  and 
conditions,  if  of  any  validity,  were  personal  merely,  and  could 
not  be  connected  with  or  made  a  burden  upon  the  lands. 

To  appreciate  the  skill  with  which  the  act  was  designed, 
it  is  necessary  to  understand  the  rules  whereby  covenants 
and  conditions  could  be  attached  to  land3,  so  as  to  run  there- 
with, and  be  obligatory  upon  successive  owners. 

In  the  first  place,  there  must  be  two  estates  in  the  same 
premises,  created  at  the  same  time,  the  one  known  as  the 
reversion,  and  the  other  as  the  tenancy,  and  the  owners  of 
these  two  estates,  known  respectively,  the  one  as  the  lord 
or  landlord,  and  the  other  the  tenant.  Covenants  and  con- 
ditions can  be  made  to  run  with  lands  in  no  other  connec- 
tion or  relation.  This  was  an  undisputed  rule  of  law  in 
1290,  when  the  statute  quia  emptores  was  enacted  in  England. 
It  is  an  unquestioned  rule  of  law  now.  It  was  denied  by 
Judge  Harris,  in  the  Bonesteel  opinion,  but  was  never  denied 
before,  nor  since.    He  admits  now  that  he  was  then  wrong. 

In  the  second  place,  the  rule  was  and  now  is,  that  coven- 
ants and  conditions  can  be  annexed  neither  to  the  reversion 
nor  to  the  tenancy,  at  any  other  time  than  when  those  es- 
tates are  created  and  the  relationship  established.  Both 
those  rules  will  be  shown  by  the  most  reliable  authority  in 
the  course  of  this  review. 

Before  the  statute,  as  every  grant  in  fee,  created  another 
fee  and  thereby  resulted  in  the  addition  of  two  other  estates, 
a  new  reversion  and  a  new  tenancy,  and  a  new  lord  and  a 
new  tenant,  covenants  and  conditions  could  be  affixed,  always 
to  remain  as  incidents  of  said  estates.  By  this  means  lands 
became  the  subjects  of  so  many  such  estates  and  so  burden- 
ed with  the  multiplied  covenants  and  conditions,  as  to  pro- 
duce evils  demanding  legislative  interposition.  Hence  the 
statute  quia  emptores  was  enacted. 

Its  direct  effect  was,  not  to  forbid  the  making  of  grants 
in  fee,  by  a  tenant  in  fee,  but  to  provide  that  every  deed  in 
fee,  instead  of  creating  another  fee  or  tenancy  as  it  had 


31 


done,  should  be  the  assignment  of  all  the  grantor's  estate 
in  the  premises.  His  grantee  came  in,  not  as  the  tenant  of 
the  grantor,  but  as  the  tenant  of  the  chief  lord  of  whom 
the  grantor  had  held.  For  example  ;  Stephen  Yan  Renselaer, 
deceased,  in  1790,  was  the  owner  in  fee  of  the  lands  involv- 
ed in  the  decisions  under  review.  He  held  of  the  State. — 
He  was  tenant  of  the  fee,  the  reversion  of  which  was  in  the 
State.  He  executed  deeds  in  fee  to  the  grantees  therein 
named.  Those  deeds  operated  as  assignments  or  transfers 
of  all  the  grantor's  title  and  estate  in  the  described  premises 
to  the  respective  grantees,  the  reversion  all  the  time  re- 
maining in  the  State.  This  was  the  direct  effect  of  the 
statute.  The  'majority  opinion  in  the  case  under  review 
concurs  in  that  construction  of  our  statutes  and  their  opera- 
tion, and  so  does  the  minority  opinion  so  far  as  we  can  un- 
derstand it. 

Another  effect  followed.  We  have  before  noticed  that 
a  grantor  in  fee  under  the  feudal  law,  as  to  his  grantor, 
was  not  the  owner  of  property  within  Constitutional 
meaning.  That  is,  his  grantor  could  take  his  estate  from 
him  without  d^e  process  of  law,  and  could  impose  condi- 
tions of  forfeiture  in  his  own  favor,  the  non-compliance 
with  which  could  be  made  to  divest  the  tenant  of  all  his 
estate  at  the  option  of  the  grantor. 

The  grantee  in  fee  under  the  statute  quia  emptores  has 
an  estate  which  no  individual  can  take  from  him,  except 
by  due  process  of  law.  His  estate  is  property  in  the  larg- 
est signification  of  that  word,  as  guarded  by  the  common 
law  and  as  protected  by  the  Constitution.  When  he  has 
received  his  conveyance,  from  that  moment  he  has  the 
title  of  the  vendor,  and  the  latter  is  a  stranger  to  the  land. 
The  vendee  owes  no  faith  to  the  vendor,  and  is  at  liberty 
to  treat  him  as  a  stranger  to  the  title — See  7,  Wheaton 
548  ;  Osterhout  vs.  Shoemaker,  3  Hill,  513  j  5  Selden,  343. 
— He  has  as  absolute  a  property  in  lands  as  it  is  possible 
for  an  individual  to  have.    To  the  State  he  is  a  tenant ; 


32 


for  the  reversion  of  his  fee  is  in  the  State.  As  to  indivi- 
duals he  is  absolute  owner. 

Such  are  conceded  to  have  been  the  direct  effects  of  the 
English  statute  quia  emptores.  It  is  further  conceded  that 
the  indirect  and  consequential  effects  were  to  place  it  out 
of  the  power  of  owners  in  fee,  to  grant  lands  in  fee  and 
impose  covenants  and  conditions  to  burden  the  lands. 
That  such  was  the  result  in  England,  is  admitted.  That 
such  were  the  consequences  sought  by  the  English  legisla- 
tion is  admitted.  There  is  no  pretence,  nor  is  there  ground 
on  which  to  base  a  pretence,  that  any  other  than  the  in- 
direct and  consequential  effects  referred  to  were  sought, 
expected,  or  desired.  It  is  conceded  that  if  these  cases 
were  before  the  English  Courts  and  to  be  disposed  of  in 
accordance  with  English  authorities,  the  actions  could 
not  be  maintained.  It  is  conceded  that  our  Court  of  Ap- 
peals has  fully  endorsed  the  English  construction  and  de- 
clared the  laws  of  this  State,  upon  this  subject,  precisely 
like  those  of  England. 

Judge  Gould  comments  with  severity  upon  these  deci- 
sions and  the  elementary  writers  who  have  endorsed  their 
propriety.  He  denied  that  the  statute  quia  emptores  des- 
troyed the  feudal  system,  or  that  a  tenant  in  fee  under  the 
allodial  system  of  tenures  has  any  advantages  over  a  tenant 
in  fee  under  the  feudal  law.  He  concludes  upon  these 
authorites  in  this  emphatic  language  :  "  This  may  be 
law ;  it  is  not  justice.  Nor  does  it  come  within  Lord 
Coke's  maxim,  that 6  law  ia  the  perfection  of  reason.'  " 

Again,  in  taking  final  leave  of  such  authorities,  he  says  : 
"  As  I  cannot  but  hold,  that  for  the  State  of  New  York, 
the  statutes  of  New  York  are  more  obligatory  than  all  the 
statutes  and  decisions  of  'other  States  and  nations,  and 
that  by  our  statutes  (certainly  since  1805,)  the  leases  in 
question  have  been  valid  as  leases ;  and  that  the  estate  or 
rights  by  and  under  them  (of  both  lessor  and  lessee,)  have 
been  assignable  ;  and  that,  at  least  since  January  1st, 


33 


1830,  the  statute  remedy  of  re-entry  by  ejectment  has  been 
applicable  by  and  to  the  parties  to  such  leases,  which  re- 
medy is  not  impaired  by  the  statute  of  1846." 

His  mode  of  working  out  his  ideas  of  the  law  by  "  the 
perfection  of  reason,"  will  be  noticed  in  other  numbers. 


5 


Number  IV. 


The  position  of  counsel  on  the  argument  —  No  disagreement  as  to  the  law 
of  the  De  Peyster  case  —  The  defence  perfect  under  it  —  Plaintiffs  sought 
to  avoid  it,  only  in  one  way,  to  wit,  that  the  Van  Rensselaers  were  out- 
side of  the  laws  of  the  State  ;  that  by  virtue  of  the  letters  patent  a  manor 
was  created  and  survived  the  revolution  ;  and  the  plaintiffs  were  all  lords 
holding  the  reversion  of  the  fees  owned  by  the  defendants  —  This  point 
no.t  noticed  by  the  Court  —  Their  previous  decisions  in  Main  vs.  Feathers 
and  Van  Rensselaer  vs.  Bonesteel  ignored  —  A  new  course  taken  and  new 
points  adopted  by  the  Court  —  The  fallacy  of  their  position  —  Two 
estates  necessary  to  make  covenants  a  burden  upon  land  —  What  those 
estates  must  be  and  when  created  —  Each  alike  indispensable. 

In  the  argument  of  the  cases  under  review,  opposing 
counsel  did  not  differ  about  the  rules  of  law.  It  was 
agreed  that  except  between  landlord  and  tenant  covenants 
could  not  run  with  the  land  ;  and  that  conditions  of  for- 
feiture could  not  be  annexed  except  upon  a  tenancy  in 
favor  of  the  immediate  reversion.  Plaintiff's  counsel  did 
not  rest  their  argument  upon  the  points  taken  by  the 
court  in  the  case  of  Main  vs.  Feathers,  or  in  that  of  Van 
Rensselaer  vs.  Bonesteel.  They  did  not  assail  the  De 
Peyster  case  as  an  erroneous  decision,  but  assented  to  its 
correctness  generally.  They  admitted  that  the  statute 
quia  emptorcs  was  in  force  in  this  State  at  the  time  of  the 
execution  of  the  deeds  in  question,  and  that,  as  decided 
by  the  Court  of  Appeals,  it  produced  precisely  the  same 
effects  here  as  it  had  produced  in  England.  It  was  not 
claimed  that  plaintiffs  could  recover  except  upon  the 
theory  of  landlord  and  tenant,  or  that  that  relationship 
could  be  constituted  in  any  other  than  the  common  law 
way. 

The  point  of  difference  between  counsel,  wa3,  not  that 
the  Court  of  Appeals  was  wrong  in  the  De  Peyster  case, 


35 


or  that  defendant's  counsel  misconstrued  or  misunder- 
stood the  decision  nud  its  effects ;  but  that  certain  letters 
patent  from  the  English  crown  were  not,  in  that  case,  be- 
fore the  court,  and  that  the  introduction  of  those  letters 
would  have  changed  the  result  of  the  decision.  It  was 
not  pretended  that  such  letters  would  have  changed  the 
laws  of  the  State,  but  it  was  insisted  that  they  would  have 
excepted  the  grantor  of  the  deeds  in  question  from  the 
operation  of  the  laws,  while  making  deeds  in  fee  of  his 
lands  lying  within  the  Manor  of  Rensselaerwyck. 

Counsel  for  plaintiff  took  this  position — that  the  letters 
patent  created  a  manor,  and  that  the  patentee  was  thereby 
made  the  lord  of  the  manor  and  invested  with  extraor- 
dinary privileges ;  that  those  privileges  survived  the 
change  of  government  consequent  upon  the  revolution, 
and  yet  survive.  Among  the  privileges  so  churned,  was 
the  one  of  creating  fees  to  be  held  of  the  grantor  as  chief 
lord.  It  was  insisted  that  Stephen  Van  Rensselaer,  de- 
ceased, the  grantor  of  the  deeds  in  question  was  in  the 
enjoyment  of  such  a  privilege  or  prerogative,  when  he 
executed  th#  deeds  in  1790 — 1796.  That  is,  that  he  was 
then  the  lord  of  the  manor,  and.  as  such,  the  chief  lord  of 
the  fee,  and  upon  executing  a  deed  in  fee,  had  the  rever- 
sion ;  that  he  remained  the  owner  of  the  land,  the  real 
lord  of  the  soil,  and  his  grantees  took  only  a  tenancy  ; 
that  upon  his  reversion,  he  could  annex  covenants  and 
conditions  as  incidents,  which  would  follow,  as  incidents, 
into  whose  hands  soever  the  reversion  might  pass  ;  and 
that  upon  the  tenancy  or  estate  granted,  he  could  impose 
the  same  covenants  and  conditions  as  burdens  to  rest 
thereupon  and  be  borne  by  the  holder  thereof. 

This  peculiar  privilege  or  prerogative  was  claimed  to  be 
personal  to  him  as  lord  of  the  manor  and  chief  lord  of  the 
fee.  limited,  however,  to  the  territorial  boundary  of  the 
manor.  It  was  not  pretended  that  he,  or  those  claiming 
to  succeed  to  his  peculiar  privileges,  could  convey  lands 


36 


in  fee  lying  in  any  other  part  of  the  State,  and  still  retain 
the  reversion ;  or  that  he  could  impose  convenants  and 
conditions  upon  alienation  in  fee  off  of  the  manor,  to  run 
with  the  land.  Outside  the  manor  he  was  a  mere  citizen, 
and  if  he  owned  lands,  was  only  a  tenant  in  fee  ;  and  if  he 
made  a  deed  in  fee,  it  was  an  alienation  and  not  a  subin- 
feudation. He  became  a  stranger  to  the  lands  sold,  and 
not  the  lord.    He  was  there  a  vendor  and  not  the  lessor. 

Within  the  manor  it  was  claimed  to  be  different.  There 
counsel  insisted  he  was  more  than  a  tenant  in  fee.  He  was 
the  chief  lord.  There  he  could  create  fees  to  be  held  of 
himself.  No  other  individual  could.  If  one  of  his  grantees 
in  fee  made  a  deed  in  fee  precisely  like  the  one  under  which 
he  held  of  Van  Reoselaer,  with  like  covenants  and  condi- 
tions, the  reversien  did  not  remain  in  him.  His  grant  was 
an  alienation.  Having  passed  all  the  estate  he  had,  the 
covenants  and  conditions  named  in  his  deed  could  not  run 
with  the  land  He  had  merely  assigned  his  fee  or  tenancy. 
He  had  not  made  or  created  another  fee.  The  first  section 
of  the  statute  of  tenures  deprived  him  of  that  right  and  his 
deed  of  that  effect. 

No  one  pretends  that  two  or  more  estates  in  fee  can  exist 
in  the  same  premises,  as  was  the  case  at  common  law  ;  or 
that  a  mere  tenant  in  fee,  whether  holding  of  the  State  or 
of  some  immediate  lord,  if  any  such  have  existed,  could 
have  created  a  fee  to  hold  of  himself  at  any  time  since  1776; 
or,  that  if  he  made  a  deed  in  fee,  covenants  and  conditions 
could  be  inserted,  so  as  to  run  with  the  land.  That  would 
be  subinfeudation. 

Counsel  for  the  Van  Renselaers  have  often  taken  ground 
that  the  Statute  quia  emptores  was  in  force  in  this  State 
long  before  it  was  so  decided  in  the  De  Peyster  case. 
For  example  ;  in  the  case  of  William  P.  Van  Rensselaer  vs. 
Elkanah  Hoag,  brought  in  1846,  and  heard  before  the  Su- 
preme Court  of  the  3d  district  at  General  Term  in  1349,  it 
was  insisted  on  behalf  of  the  Plaintiff  that  that  Statute  was 


37 


enacted  in  1787,  and  had  since  been  in  full  force.  Hoag  had 
proved,  in  the  way  of  defence,  that  he  held  under  a  deed 
from  one  Ambler,  and  in  that  deed  were  covenants  for  rent, 
with  provisions  to  distrain  and  to  re-enter  made  in  favor  of 
Ambler.  It  was  urged  by  counsel  for  the  defence  that  the 
defendant  was  not  liable  on  the  first  deed  because  he  was 
not  the  assignee  of  that  deed,  but  an  under-tenant,  being  the 
tenant  of  Ambler,  and  not  of  Yan  Rensselaer.  The  reply 
to  that  part  of  the  defence  was,  that  the  deed  from  Ambler, 
being  in  fee,  was  an  assignment  of  his  whole  estate  and  net 
the  creation  of  a  new  tenancy  ;  that  Ambler  had  no  reversion 
left  and  therefore  no  privity  of  estate  with  his  grantee  ; 
and  that  the  covenants  were  personal  and  did  not  run  with 
the  land. 

Opposing  counsel  in  the  cases  under  review  have  not  dis- 
agreed about  what  the  rules  of  the  common  law  were  before 
the  statute  quia  emptores,  nor  as  to  what  they  were  and  are 
now  as  modified  by  statute. 

The  point  of  disagreement  was  as  to  the  personal  pre- 
rogatives of  Yan  Rensselaer,  the  grantor  of  the  deeds  in 
question,  at  the* time  they  were  executed.  Whether  he  re- 
tained, or  did  not  retain  the  reversion,  was  made  the  decisive 
point  by  the  counsel  upon  both  sides.  And  whether  he  did 
or  did  not,  was  to  be  determined  by  deciding  whether  he 
was  the  chief  lord  of  a  Manor  having  the  escheat,  or  a  mere 
tenant  in  fee  of  the  State  ;  and  whether  the  plaintiffs  are 
all  now  lords  holding  the  reversion  or  escheat  of  the  lands  in 
question. 

This  point  is  decided  for  the  defence.  Judges  "Wright 
and  Harris  expressly  declare  the  State  to  have  the  reversion, 
and  that  the  grantor  on  executing  the  deeds  did  not  retain 
it.    Referring  to  our  statutes  they  hold  this  language  : 

"  It  is  true  that  their  indirect  and  consequential  effect 
upon  a  grant  in  fee,  reserving  rent,  was  to  divest  the  grantor 
of  the  escheat." 


38 


•Again :  "  The  indirect  consequences  of  the  statutes  con- 
cerning tenures  and  escheat,  may  have  been  to  take  from  the 
grantor  in  fee,  the  escheat  or  possibilit}^  of  reverter,  which 
created  privity  of  estate  at  common  law." 

Again  :  "  Our  statutes  put  an  end  to  the  feudal  system  and 
technical  feudal  tenure,  and  substituted  tenure  between  each 
landholder  and  the  State." 

And  again  :  "  It  is  true  that  by  giving  the  escheat  of  all 
lands  in  the  State  to  the  people,  what  in  feudal  meaning  was 
known  as  the  reversion  was  taken  away." 

Here  again,  as  in  the  Bonesteel  case,  the  court  have  clear- 
ly decided  the  only  questions  presented  by  the  pleadings 
and  by  the  argument  of  counsel,  in  favor  of  the  defendants; 
but  in  these  cases,  as  in  that,  have  given  judgment  for  the 
plaintiffs. 

In  the  Bonesteel  case,  the  Court  treated  the  plaintiff  in 
the  same  liberal  manner.  There,  counsel  sought  to  maintain 
his  action  on  the  ground  that  the  relation  of  lord  and  ten- 
ant existed  between  the  parties.  By  the  pleadings,  the  right 
to  recover  was  based  solely  upon  such  alleged  relations. — 
There  was  no  other  pretended  connection.  The  case  was 
placed  upon  the  same  grounds  as  those  under  review.  The 
counsel  for  the  defence  met  the  action  by  denying  that  such 
relations  existed,  on  the  ground  that  the  plaintiff  was  not 
the  owner  of  the  reversion,  relying  upon  the  De  Peyster 
case  to  make  good  his  position.  The  court  sustained  him 
upon  that  point,  but  rebuked  him  for  attempting  to  impose 
a  fallacy  upon  the  Court  in  contending  that  such  a  relation 
as  that  of  landlord  and  tenant  was  material.  It  did  not 
seem  to  occur  to  the  Court,  that  the  plaintiff's  counsel  had 
contended  for  the  same  fallacy,  if  fallacy  it  was,  and  made 
no  pretence  of  a  right  to  recover  upon  any  other  ground. 
To  sustain  that  decision  Judge  Harris  made  an  argument 
proving  so  satisfactorily  to  himself,  that  there  was  no  differ- 
ence between  the  landlord  as  against  his  tenant,  and  a  strang- 
er to  the  land  as  against  the  absolute  owner,  in  regard  to 


39 


the  right  to  recover  the  rents  and  profits,  that  he  refused  to 
hear  a  reply  to  it,  on  a  subsequent  occasion. 

In  the  cases,  now  under  review,  while  adhering  to  the 
former  decision,  that  the  reversion  was  not  left  in  the  grantor 
and  was  not  in  the  plaintiffs  by  the  devise  or  the  assignments, 
as  alleged  in  the  complaints,  the  three  judges  unite  so  far,  to 
overrule  that  decision,  as  to  hold  the  grantor  to  have  been 
made  a  landlord  and  his  grantees  tenants.  They  admit  that, 
by  the  deeds,  the  grantor  alienated  his  entire  estate,  but  they 
assert  that  certain  statutes  since  enacted — ex  post  facto  stat- 
utes— have  made  him  the  landlord  and  his  vendee  a  tenant  ; 
that  the  covenants  were  therefore  rent-service  and  run  with 
the  land  ;  and  that  those  relations  have  come  to  the  parties 
to  these  actions,  entitling  the  one  side  to  the  benefits  and 
subjecting  the  other  to  the  burdens  of  the  covenants  in 
question.  This  is  the  point  whereupon  the  Judges  unite  in 
saving  the  plaintiff's  alleged  causes  of  actions.  After  truly 
deciding  that  the  parties,  against  whom  they  adjudicate, 
own  the  fee,  the  reversion  of  which  is  in  the  State,  and 
thereby  have  the  entire  and  absolute  property  of  the  lands 
as  completely  aj  indviduals  can  have,  they  give  judgments 
against  them,  taking  away  their  farms  and  bestowing  them 
upon  claimants  who,  by  their  own  decision,  confessedly,  have 
no  estate  therein. 

It  will  require  no  discussion  to  show  that  these  decisions 
are  substantially  like  the  decision  in  the  Bonesteel  case,  ex- 
cept that  in  these  cases  they  call  the  parties  landlords  and 
tenants.  They  place  them  in  the  same  relation  to  each 
other  and  to  the  lands  in  question,  in  the  one  case  as  in  the 
other  But  while  the  decision  is  substantially  the  same,  the 
point  is  formally  changed,  and  the  argument  entirely  differ- 
ent. 

Let  us  now  see  how  they  are  to  make  the  covenants  run 
with  the  land,  either  upon  principle  or  by  authority. 

It  is  a  proposition  that  will  not  admit  of  controversy, 
that  unless  there  was  some  privity  between  the  parties  to 


40 


the  actions,  the  one  could  not  be  made  the  debtor  of  the 
other.  There  must  be  privity  of  contract,  or  privity  of 
estate  to  produce  such  a  result. — See  16  John,  292. — No 
privity  of  contract  existed.  The  parties  to  the  deeds 
were  not  the  parties  to  the  actions.  It  was  privity  of  es- 
tate then  or  nothing.  That  at  once  presents  the  ques- 
tion, what  is  privity  of  estate  such  as  can  sustain  actions 
like  these  ?  What  concurrence  of  circumstances,  of  pro- 
perty and  ownership,  of  parties  and  estates,  is  required  to 
constitute  such  privity  ?  When  the  common  law  relation 
of  landlord  and  tenant  exists,  whether  it  be  for  years,  for 
life,  or  in  fee,  then  there  is  privity  of  estate,  with  which 
all  covenants  concerning  the  land  embraced  within  the 
relationship,  run  therewith ;  or,  more  strictly  speaking, 
run  with  the  respective  estates  to  which  the  covenants  are 
attached.  To  make  a  covenant  real,  as  distinguished  from 
personal,  so  that  any  one  besides  the  covenantor  can  be 
made  liable  to  fulfill  it,  there  must  be  two  distinct  estates 
in  the  same  premises,  created  at  the  same  time  and  belong- 
ing to  distinct  parties.  For  example,  take  the  covenant 
of  rent ;  there  must  be  one  estate  for  which  it  is  to  be 
paid,  and  another  to  which  it  is  to  be  paid.  The  burden 
of  this  covenant,  falls  upon  the  owner  of  the  one  estate,  and 
if  an  implied  covenant,  it  can  be  enforced  of  no  one  else. 
The  estate  upon  which  the  rent  falls  as  a  burden,  is  the 
tenancy.  The  benefit  of  the  covenant  belongs  to  the  owner 
of  the  other  estate  and  to  no  one  else.  That  estate  is  the 
reversion,  and  its  owner  is  called  the  reversioner.  To 
make  the  one  liable,  it  is  only  necessary  that  the  tenancy 
should  be  his.  To  entitle  the  other  to  receive  it,  it  is  only 
necessary  for  him  to  own  the  reversion.  When  the  one 
ceases  to  be  the  tenant,  he  ceases  to  be  liable  to  pay  rent, 
and  when  the  other  ceases  to  be  the  reversioner,  he  ceases 
to  have  have  any  claim  to  recover  rent.  It  is  an  instance 
where  the  ordinary  rule,  that  the  owner  controls  the  pro- 
perty, is  reversed,  and  the  property  is  made  to  control  the 


41 


owner.  The  respective  estates  are  the  legal  parties  ;  the 
respective  owners  are  personally  nobody.  Strike  out  one 
of  the  owners,  or  both,  and  the  arrangement  remains  undis- 
turbed. Strike  out  one  of  the  estates }  no  matter  which,  and 
the  whole  fabric  is  destroyed. 

This  order  of  estates,  when  applied  to  grants  in  fee,  was 
the  feudal  system.  It  was  contrived  to  survive  from  one 
generation  to  another,  carrying  with  it  despotic  power  and 
its  consequent  oppressions.  It  was  an  unalterable  slavery 
of  the  soil,  and  consequent  slavery  of  the  tillers  thereof. 

There  is  an  unbroken  current  of  authorities,  extending 
through  centuries,  to  sustain  the  propositions,  that  to  make 
a  covenant  run  with  the  land,  as  a  burden  thereon,  there 
must  be  two  estates,  created  at  the  time  of  making  the 
covenants ;  and  whenever  either  ceases  to  exist,  then  the 
covenants  are  detached  and  can  no  longer  be  enforced. 
There  must  be  a  tenancy,  the  owner  of  which  is  subject  to 
perform  ;  and  there  must  be  a  corresponding  reversion, 
the  owner  of  which  is  entitled  to  exact  the  performance. 
If  the  reversion,  created  in  connection  with  the  tenancy, 
be  destroyed  of  lost,  there  is  no  one  to  whom  payment  can 
be  made.  If  the  tenancy  come  to  an  end,  there  is  no  one 
liable  to  perform.  The  relation  is  that  of  landlord  and 
tenant.  The  terms  are  correlative  and  dependent.  With- 
out the  landlord  there  is  no  tenant.  Without  the  tenant 
there  is  no  landlord. 


6 


Number  V. 


The  authorities  to  the  rule,  that  two  estates  are  necessary  —  Smith's  Leading 
Cases  ;  1  Barn.  &  Cress. ;  3  Denio,  297;  2  Kernan,  302  ;  Webb  v.  Russell, 
3  Term  R.,  393  ;  Judge  Gould's  quotation  from  the  latter  case — How  he 
applies  it  to  the  cases  under  review  —  The  English  cases  admitted  to  sus- 
tain the  defence  —  Nellis  v.  Lathrop,  22  Wend.,  121 ;  Cotter  v.  Richard- 
son, 8  Eng.  L.  &  Eq.  Rep  .  428 ;  Weld  v.  Baxter,  38  Eng.  L.  &Eq.  R.,  428*; 
Thome  v.  Woolcombe,  3  Barn.  &  Adolph.,  586  ;  Baker  v.  Gostling,  1 
Bing.  N.  C,  29. 

It  has  been  stated  in  preceding  numbers,  that  to  consti- 
tute the  relation  of  landlord  and  tenant,  two  estates  are 
required ;  a  reversion  and  a  tenancy.  It  has  also  been 
stated,  that  except  within  those  relations,  no  covenant 
could  be  attached  to  lands,  so  as  to  become  a  burden  there- 
upon; and  that  no  kind  of  property,  except  that  of  a 
tenant  to  his  immediate  reversioner,  is  subject  to  the  con- 
dition of  forfeiture  by  conventional  arrangement  of  the 
parties  or  by  the  laws  of  the  State.  If  the  owner  of  an 
estate  in  lands,  no  matter  what  the  character  of  the  estate, 
nor  how  limited,  whether  for  years,  for  life  or  lives,  or  in 
fee,  part  with  his  entire  estate,  he  cannot  affix  covenants 
to  run  with  the  land,  as  a  burden  upon  the  estate  he  has 
conveyed,  because  he  has  no  estate  left  in  the  premises  to 
which  he  can  annex  the  covenants  as  a  benefit.  They  can- 
not be  made  beneficial  to  the  covenantee  as  reversioner, 
for  he  has  no  reversion,  and  the  covenants  are  therefore 
to  him  only  personal.  Being  personal  on  the  one  side,  they 
cannot  be  made  otherwise  on  the  other.  See  notes  to 
Spencer's  Case,  in  1  Smith's  Leading  Cases,  p  38.  In  these 
notes  the  rule  is  thus  stated :  "  Upon  the  whole,  there 
appears  to  be  no  authority  for  saying  that  the  burden  of  a 


43 


covenant  will  run  with  land  in  any  case,  except  that  of 
landlord  and  tenant."  This  is  the  conclusion  of  the  Eng- 
lish annotator,  after  reviewing  all  the  English  authorities. 
The  learned  American  editors,  Messrs.  Hare  and  Wallace, 
upon  a  review  of  all  the  authorities  in  this  country,  arrived 
at  the  same  conclusion. 

In  accordance  with  that  principle,  in  Yyvyan  v.  Arthur, 
1  Barn.  &  Cress,  p.  410,  Best,  J.,  enunciated  the  following 
rule,  as  one  whereby  to  determine  whether  a  covenant  was 
personal  or  real : 

(i  The  general  principle  is,  that  if  the  performance  of  the 
covenant  be  beneficial  to  the  reversioner,  in  respect  of  the 
lessor's  demand,  and  to  no  other  person,  his  assignee  may 
sue  upon  it ;  but  if  it  be  beneficial  to  the  lessor,  without 
regard  to  his  continuing  owner  of  the  estate,  it  is  a  mere 
collateral  covenant,  upon  which  the  assignee  cannot  sue." 

This  rule  was  repeated  and  approved  of,  in  Allen  vs.  Cul- 
ver, 3  Denio  297,  and  again  by  the  Court  of  Appeals  in 
Dolph  vs.  White,  2  Kernan  302.  The  correctness  of  it  ap- 
pears never  to  have  been  questioned  until  the  decisions  now 
under  review.  #  Three  learned  Judges,  of  the  Third  Judicial 
District,  have  just  discovered  that  by  the  statutes  of  this 
State,  the  reversion  is  not  here  a  material  fact  in  the  con- 
stitution of  the  relations  of  landlord  and  tenant,  and  there- 
fore not  material  to  the  determination  of  the  question, 
whether  or  not  covenants  are  real  or  merely  personal.  They 
have  sent  their  decision  forth  to  the  world  with  arguments 
so  elaborate,  and  a  confidence  in  its  rectitude  so  strongly 
expressed,  as  plainly  to  indicate  that  they  have  resolved 
upon  giving  their  new  doctrine  an  active,  potential  existence, 
and,  to  that  purpose,  have  devoted  their  personal  efforts,  as 
well  as  the  weight  and  authority  of  their  official  position. 
Those  who  have  lands  and  those  who  have  not,  are  to  be 
placed  "upon  the  same  footing."  They  admit  the  authorities 
and  the  learning  of  ages  to  be  against  them  ;  they  admit 
those  authorities  and  that  learning  to  be   "  law"  but 


44 


they  assert,  that  they  are  not  "  justice"  because  they  do  not 
answer  to  Lord  Coke's  maxim,  "  law  is  the  perfection  of 
reason,"  as  they  understand  it,  and  therefore  they  reject  and 
refuse  to  follow. 

They  have  referred  to  Webb  vs.  Russel,  3  Term.  R.  p. 
393  as  one  of  the  cases  which  so  establishes  the  law  con- 
trary to  justice. 

Stokes  and  R.  Webb  leased  certain  premises  to  Russel  for 
the  yearly  rent  of  X200  payable  to  Stokes  and  his  assigns. 
At  the  time  of  making  the  lease,  R.  Webb  was  the  owner  of 
the  premises  for  an  unexpired  term  of  99  years,  subject  to 
an  equity  of  redemption  by  Stokes  upon  the  payment  of  a 
certain  sum  to  R.  Webb.  Russell  thereupon  became  the 
owner  or  tenant  of  the  term  of  11  years  ;  the  reversion  of 
which  for  the  term  of  99  years  was  in  R.  Webb,  subject 
to  Stokes'  equity  of  redemption,  and  the  further  reversion 
in  fee  to  one  Medley.  Medley's  reversion  in  fee,  which 
was  consequent  to  the  term  of  99  years,  was  convey- 
ed to  Sarah  Webb.  R.  Webb  devised  the  reversion  for  the 
term  of  99  years  to  her.  She  brought  her  action  of  coven- 
ant against  Russell  to  recover  rent  upon  the  11  years  lease. 

The  Court  decided  that  the  action  could  not  be  maintained 
upon  two  grounds  :  First,  The  covenants  having  been  made 
with  Stokes,  in  whom,  at  the  time,  there  was  no  interest 
in  the  land  of  which  a  court  of  law  could  take  notice,  did 
not  run  with  the  land.  Lord  Kenyon,  C.  J.,  remarking  the 
lack  of  estate  in  the  covenantee,  said  : 

"  These,  therefore,  were  collateral  covenants.  And  though 
a  party  may  covenant  with  a  stranger  to  pay  a  certain  rent 
in  consideration  of  a  benefit  to  be  derived  under  a  third 
person,  yet  such  a  covenant  cannot  run  with  the  land." 

The  reader  will  perceive  that  the  difficulty  lay  in  there 
not  being  two  estates  connected  with  the  covenant.  There 
were  two  persons,  but  the  one,  the  covenantee,  had,  at  the 
time,  no  estate  in  the  premises  ;  he  was  not  the  owner  of 
the  reversion.    The  reversion  of  the  99  years,  after  the 


45 


expiration  of  the  11  years,  was  in  R.  Webb.  The  covenant 
to  Stokes  was  not,  therefore,  attached  to  the  reversion  so  as 
to  pass  as  an  incident  to  it,  or  in  other  words,  so  as  to  run 
with  the  land.  R.  Webb  was  one  of  the  lessors  and  had  the 
immediate  reversion,  but  the  covenants  were  made  only  to 
Stokes  the  other  lessor,  who  had  only  an  equity  of  redemp- 
tion in  the  reversion  consequent  upon  the  term  of  11  years. 
Therefore  the  Plaintiff,  Sarah  Webb,  by  being  the  owner  of 
the  reversion  last  named,  did  not  acquire  a  right  to  maintain 
an  action  on  the  covenants,  for  they  were  not  incidents  of 
that  reversion. 

The  idea  that  the  mere  reservation  of  rent  to  Stokes, 
gave  him  an  "  entity"  in  the  land,  which  was  just  as  good 
as  the  reversion  to  make  a  lord  of  him,  never  occurred  to 
the  English  lawyers  and  judges,  notwithstanding  that  the 
English  Statutes  upon  the  subject  were  the  same  as  ours. 

Second.  The  Court  held  that,  even  if  the  covenant  had 
been  made  to  Webb,  the  owner  of  the  immediate  reversion, 
the  action  could  not  be  maintained,  because  it  further 
appeared  that  the  plaintiff  not  only  had  the  reversion  of 
the  eleven  yea£s,  but  of  the  ninety-nine  years,  thereby 
acquiring  an  absolute  inheritance  in  the  land.  The  rever- 
sion of  the  eleven  years'  term,  was  extinguished  in  the 
reversion  of  the  ninety-nine  years  term,  and  consequently 
the  reversion  attendant  on  the  lease  for  eleven  years  no 
longer  existed. 

The  decision  of  Webb  v.  Russell,  excited  much  atten- 
tion at  the  time,  and  has  since  been  repeatedly  and  expressly 
recognized  as  correct,  both  in  England  and  in  this  country. 
Lord  Tenterden  and  Chief  Justice  Tindal,  on  two  different 
occasions  gave  it  express  approval.  See  2  B.  &  Adolph., 
614,  and  1  Bing.  N.  C,  29. 

Stokes  afterwards  brought  his  action  against  Russell, 
and  was  allowed  to  recover,  upon  the  ground  that  the 
covenants  were  personal,  and  did  not  therefore  pass  with 
the  reversion.    Lord  Kenyon  is  reported  to  have  observed 


46 


that  they  were  perfectly  satisfied  with  the  legality  of  the 
former  judgment,  holding  the  covenants  not  to  run  with 
the  land.— 3  Term  R.,  678. 

Judge  Gould  indulges  his  prejudices  against  foreign 
decisions,  in  connection  with  this  case,  as  follows  : 

61  And  if,  in  connection  with  such  sound  reasoning,  we 
find  in  our  own  courts  decisions  enough  to  give  even  a 
color  of  authority,  our  decisions,  according  with  common 
sense  and  common  justice,  are  better  for  us,  than  foreign 
decisions,  against  such  wholesome  grounds  of  reliance. 
Especially  when  we  have  such  good  foreign  authority  as 
3  Term  Reports,  403,  for  saying,  that  abiding  by  the  Eng- 
lish decisions,  sustains  defences  1  of  a  most  unrighteous 
and  unconscionable  nature, '  though  there  by  no  means 
as  much  so  as  those  in  these  cases. " 

The  words  quoted  from  3  Term  R.,  by  Judge  Gould, 
were  part  of  a  sentence  of  Lord  Kenyon,  in  giving  the 
opinion,  the  whole  of  which  was  as  follows : 

"  Considering,  then,  that  these  are  covenants  entered 
into  with  a  stranger  that  do  not  run  with  the  land,  con- 
sidering, also,  that  the  rent  is  incident  to  the  reversion  out 
of  which  the  term  is  carved,  and  that  that  reversion  is 
gone,  it  seems  to  me,  with  all  the  inclination  which  we 
have  to  support  the  action  (  and  we  have  hitherto  delayed 
giving  judgment,  in  the  hopes  of  being  able  to  find  some 
ground  on  which  the  plaintiff's  demand  might  be  sustained), 
that  it  cannot  be  supported.  The  defence  which  is/made 
is  of  a  most  unrighteous  and  unconscientous  nature ;  but 
unfortunately  for  the  plaintiff,  the  mode  which  she  has 
taken  to  enforce  her  demand  cannot  be  supported  ;  and 
consequently  there  must  be  judgment  for  the  defendant." 

The  facts  of  that  case  which  called  forth  the  remark 
quoted  by  Judge  Gould,  were,  that  the  plaintiff,  Sarah 
Webb,  was  the  owner  of  the  premises,  not  only  of  the 
reversion  of  the  term  of  eleven  years,  but  also,  in  fee,  upon 
the  term  of  ninety-nine  years.    The  objection  to  her  reco- 


47 


very  was  two  fold.  First.  The  covenant  was  made  to 
Stokes,  who,  though  one  of  the  lessors,  was  not  the  rever- 
sioner, and  therefore  the  covenant  was  not  attached  to  the 
reversion,  which  remained  in  R.  Webb,  the  other  lessor. 
And  second,  Sarah  Webb  acquired  the  reversion,  in  fee, 
upon  the  term  of  ninety-nine  years,  as  well  as  the  rever- 
sion of  the  eleven  years,  whereby  the  latter  and  smaller 
estate  was  merged  in  the  former  and  larger.  And  the 
reversion  of  the  eleven  year3  being  destroyed,  the  cove- 
nants, even  if  they  had  been  made  to  E.  Webb,  and  there- 
fore annexed  to  his  reversion  as  incidents,  would  have  been 
lost  along  with  the  reversion.  In  that  particular  case,  the 
court  thought  the  rule  worked  injustice,  and  so  expressed 
themselves.  But  they  concluded  it  was  better  to  enforce 
the  rule  than  to  relax  it  to  meet  that  particular  case. 
Results  have  justified  the  wisdom  of  their  course.  The 
English  judges  understood,  that  strike  out  the  rules  whereby 
property  is  held,  and  there  is  no  such  thing  as  property. 
They  foresaw  that  if  they  gave  way  to  the  particular  cir- 
cumstances of  that  case,  shortsighted,  prejudiced  or  partizan 
judges  would  make  use  of  their  decision  as  authority  in 
favor  of  parties  who  had  no  estate  in  the  premises.  They 
were  not  ambitious  of  initiating,  nor  dared  they  initiate, 
the  doctrine  that  those  who  own  lands  and  those  who  do 
not,  should  stand  upon  the  same  footing. 

The  reader  can  now  understand  the  character  of  Judge 
Gould's  remark,  that  "  unrighteous  and  unconscionable  as 
the  defence  was  in  the  case  of  Webb  vs.  Russell,  it  was 
there  by  no  means  as  much  so  as  those  in  these  cases." 

The  difference  in  the  two  cases  is  this  :  There,  the  plain- 
tiff, Webb,  owned  the  land,  and  here  the  plaintiffs,  Van 
Rensselaers,  do  not  own  the  land,  or  any  estate  therein. 
There,  the  defendant  Russell  did  not  own  the  land,  and  here 
the  defendants  Ball  and  others  are  the  absolute  owners. 

This  is  a  slight  departure  from  the  professed  rule  of  the 
cases,  that  those  who  own  and  those  who  do  not  own  the 


48 


lands,  are  to  be  put  upon  the  same  footing.  The  rule  of  law 
may  be  held  the  same,  but  the  moral  bearings  differ.  It  is 
solemnly  and  judicially  declared  by  the  three  learned  Judges, 
that  it  is  more  unrighteous  for  the  owner  of  lands  to  refuse 
to  pay  rent  to  the  stranger,  who  may  demand  it,  than 
for  the  party  in  occupation,  who  does  not  own,  to  refuse 
such  a  demand  to  the  owner. 

Unrighteous  and  unconscionable  as  the  rule  of  Webb  v. 
Russell  may  seem  to  be  to  the  learned  Judges  of  the  third 
judicial  district,  it  has  always  been  accepted  and  acted  upon 
as  the  law  not  only  of  England,  but  of  this  country.  The 
Court  of  Appeals  adopted  it  in  the  case  of  Dolph  vs.  White, 
2  Kernan,  296. 

The  last  named  action  was  brought  to  recover  the  amount 
of  a  promissory  note  made  by  White  and  Stevison  to  one 
Gilbert.  Gilbert  transferred  the  note  to  Dolph.  White, 
one  of  the  makers,  then  leased  certain  premises  to  Stevison, 
the  other  maker,  who  covenanted  to  pay  the  note  as  a  part 
of  the  rent.  Stevison  then  assigned  his  tenancy  in  the  leased 
premises  to  the  defendant,  when  Dolph,  the  holder  of  the 
note,  brought  his  action  against  the  defendant  as  assignee  of 
the  lessee  and  covenantor,  demanding  to  recover  on  the 
ground  that  the  covenant  to  pay  the  note  as  a  part  of  the 
rent,  run  with  the  land.  He  was  not  allowed  to  recover, 
because  the  plaintiff  was  not  the  grantee  of  the  reversion, 
and  therefore  there  was  no  privity  of  estate  between  him 
and  the  defendant. 

The  new  doctrine  of  "entity"  would  have  saved  that  case. 
There  was  a  covenant  to  pay  the  note  as  rent.  It  is  true 
the  holder  of  the  note  did  not  happen  to  own  the  reversion. 
But  he  was  in  no  worse  condition  than  the  covenantee  in 
the  cases  under  review.  He  had  not  the  reversion.  All  he 
had  was  the  covenant.  That  vested  an  ''entity  "  in  him, 
and  that  made  him  lord  of  the  soil,  weich  he  did  n^t  own, 
and  hence  the  covenant  run  with  the  land.  His  "  entity  " 
passed  by  assignment  and  carried  the  covenants  as  incidents. 


49 


The  covenants  created  the  c:  entity  "  and  then  rode  thereon 
and  all  together  they  rode  the  land.  Upon  the  same  princi- 
ple, the  covenant  to  pay  the  note  must  have  vested  an  <cen- 
tity  *  in  the  holder,  and  have  fastened  the  covenant  to  the 
land  in  his  favor.  Why  not  ?  It  is  as  clear  in  the  one  case 
as  in  the  other. 

In  Nellis  vs.  Lathrop  22  Wen.  121  the  plaintiff  brought 
an  action  of  covenant  upon  a  lease,  claiming  as  the  assignee 
of  the  lessors.  The  defence  was  that  the  defendant,  who 
was  the  lessee,  after  going  into  possession  under  the  lease 
but  before  the  rent  accrued,  became  the  owner  of  the  re- 
version by  purchase  under  an  execution  sale  ;  and  therefore 
the  two  estates  created  by  the  lease,  the  reversion  and  the 
tenancy,  were  destroyed  by  being  merged.  The  Plaintiff 
recovered  at  the  Circuit,  but  the  Supreme  Court  granted  a 
new  trial,  holding  that  the  acquisition  of  the  reversion  by 
the  tenant  was  an  extinguishment  of  the  lease,  and  from 
that  time  the  tenant  ceased  to  be  liable  on  his  covenants. 

According  to  the  new  doctrine,  this  decision  would  be 
wrong.  Besides  the  reversion,  which  in  this  case  was  in 
the  lessors  at  the  making  of  the  lease,  they  must  have  had 
an  "  entity."  The  rent  was  annexed  to  the  latter,  and  that 
passed  to  the  assignee  who  brought  the  suit.  The  defen- 
dant only  acquired  the  reversion.  But  how  could  that 
make  a  defence  1  He  did  not  acquire  the  "  entity,"  be- 
cause he  did  not  acquire  the  covenants  which  carry  the 
"  entity  "  with  them. 

In  Cotter  v.  Richardson,  8  Eng.  L.  &  Eq.  R.,  498,  there 
was  a  lease  for  fifty-five  years,  and  subsequently  a 
reconveyance  by  the  lessee  to  the  lessor  for  the  whole  term, 
by  way  of  mortgage.  The  court  held  the  term  of  fifty- 
five  years  to  be  thereby  merged,  and  the  lessee  no  longer 
liable  upon  the  covenants  of  that  lease.  In  the  course  of 
the  argument,  counsel  insisted  that  there  might  be  a  lease, 
although  the  whole  of  the  lessor's  interest  was  parted  with. 
To  which  Parke,  J.,  replied  :  *  There  must  be  a  reversion 
in  the  lessor." 

7 


50 


Weld  v.  Baxter,  38  Eng.  L.  &  Eq.  Rep.,  428,  was  an 
action  of  covenant  upon  a  lease  by  the  devisee  of  the  lessor 
against  the  lessee.  Plea  :  that  the  reversion  of  and  in  the 
demised  premises  did  not  belong  to  the  lessor  and  his 
heirs.  On  demurrer,  the  plea  was  held  to  be  good,  as 
traversing  a  material  allegation  in  the  declaration. 

In  Thorne  v.  Woolcombe,  3  Barn  &  Adolph.,  586,  it 
appeared  that  a  lease  was  granted  in  1759  for  ninety-nine 
years.  In  1818,  the  lessee  demised  the  premises  for  sixty- 
two  years  to  one  Paige,  the  term  of  sixty-two  years  to 
commence  in  1821,  reserving  a  rent  of  <£42,  with  covenants 
and  proviso  of  re-entry  in  case  of  default.  Paige  had 
already  the  reversion  in  fee,  immediately  consequent  to 
the  term  of  ninety-nine  years,  subject  to  a  mortgage 
granted  by  him  before  this  demise  to  him,  of  the  sixty-two 
years.  Paige  and  his  mortgagee  then  conveyed  the  pre- 
mises, in  fee,  to  a  purchaser,  and  it  was  stipulated  that  the 
purchaser  should  retain  of  the  purchase  money  £300  upon 
trust;  that  if  Paige  should  pay  the  <£42  rent,  and  perform 
the  covenants  contained  in  the  lease  of  18 18,  that  is,  the 
sixty-two  year's  lease,  the  purchaser  should  pay  over  to 
him  <£300  at  the  expiration  of  the  term  or  extinguishment 
of  the  lease  of  1759,  the  ninety-nine  years  lease.  Paige 
died,  and  this  action  was  brought  by  his  executors  in  1830 
to  recover  the  j£300. 

The  question  was,  whether  the  lease  for  ninety-nine  years 
became  extinguished  in  the  reversion  in  fee,  by  operation 
of  the  deeds  of  1818,  to  Paige,  and  of  Paige  and  his  mort- 
gagee to  the  purchaser.  It  was  held  that  the  term  was 
merged  in  the  inheritance,  and  consequently  that  as  soon 
as  the  term  became  vested  in  the  purchaser,  Paige  was 
discharged  from  the  rent  and  entitled  to  the  <£300. 

Lord  Tenterden,  in  delivering  the  opinion  of  the  court, 
expressed  himself  as  coming  reluctantly  to  that  conclusion, 
by  reason  of  prejudice  to  the  claimants.  w  But,"  he  said, 
"  the  principles  of  the  law  on  this  subject  are  plain,  and 
the  authorities  quoted  by  Mr.  Follett  are  unanswerable." 


51 


In  Baker  v.  Goslling,  1  Bing.  N.  C,  29,  Tindal,  C.  J., 
said  as  to  Thome  v.  Woolcombe,  "  it  amounts  to  no  more 
than  a  decision,  that  when  the  term  is  merged  in  the 
inheritance,  the  rent  reserved  is  extinguished  ;  little  more 
than  had  before  been  decided  in  Webb  v.  Russell,  which 
excited  so  much  attention  at  the  time,  but  which  has  long 
been  recognized  as  undoubted  law." 


Number  VI. 


Authorities  showing  the  necessity  of  two  estates  continued  —  Ludford  ys. 
Barber,  1  Term  Rep.,  86  ;  Baldwin  vs.  Walker,  21  Conn.  Rep.,  168 ;  Simers 
vs.  Saltus,  3  Denio,  214;  Lane  vs.  King,  8  Wen.,  584;  McKircher  vs. 
Hawley,  16  John.,  288  ;  Peck  vs.  Northrop,  17  Com.  Rep,,  217 ;  Moss  vs. 
•  Gallimore,  1  Douglass,  279  ;  Burden  vs.  Thayer,  3  Metcalf,  76  ;  Pollock  vs . 
Cronise,  12  How.  Pr.  Rep..  363;  Wheelock  vs.  Thayer,  16  Pick.,  68; 
Croade  vs.  Ingraham,  13  Pick.,  33  ;  2  Bing.,  N.  C,  125  and  411 ;  3  Bing., 
N.  C,  898  ;  8  Taunt.  Rep.,  227;  8  Wen.,  175. 

At  the  close  of  the  last  number  we  referred  to  some  of 
the  leading  cases  wherein  rents  have  been  treated  as  so  in- 
separably incident  to  the  reversion  that  they  could  not 
exist  independently  of  such  a  connection.  Cases  of  the 
same  character  are  numerous.  A  few  more  will  be 
noticed. 

Ludford  vs.  Barber,  1  Term  R.,  86,  was  an  action  of  cove- 
nant for  rent  in  arrear  upon  a  lease  made  by  J.  B.  Ludford, 
who  was  a  tenant  for  life,  and  in  which  John  Ludford,  the 
plaintiff,  who  was  his  reversioner,  was  also  named.  The 
lease  was  to  the  defendant.  The  tenant  for  life  executed 
the  lease.  It  was  for  a  term  of  40  years,  reserving  an 
annual  rent  with  covenants  by  the  lessee.  The  tenant  for 
life  died  before  the  expiration  of  the  40  years.  Then  the 
plaintiff,  the  reversioner  of  the  life  estate,  executed  the 
lease  by  way  of  confirmation,  and,  rent  being  in  arrear, 
brought  this  action.  Held  that  he  could  not  recover  be- 
cause the  tenant  for  life  only  executed  the  lease,  and 
therefore  on  his  decease  it  was  totally  void  ;  that  the  rever- 
sioner by  subsequently  executing  the  lease,  although 
originally  named  therein,  could  not  thus  set  it  up  against 
the  lessee,  for  it  was  not  a  covenant  to  such  reversioner. 


53 


Here  it  will  be  seen  was  a  lease  for  40  years,  wherein 
the  lessor  had  a  life  estate  only.  Before  the  expiration  of 
the  term,  the  lessor  died,  and  with  him  expired  also  the 
reversion  consequent  to  the  40  years  lease.  Connected 
with  that  lease  all  privity  of  estate  was  at  an  end  by  the 
failure  of  the  reversion.  The  plaintiff  owned  the  land,  but 
he  had  not  the  reversion  of  the  tenancy,  and  therefore 
could  not  sustain  his  action.  He  had  the  reversion  conse- 
quent to  the  life  estate,  while  the  lessor  thereof  was  living, 
and  a  consequent  privity  of  estate  with  him.  But  that  re- 
version was  not  connected  with  the  covenants.  Those 
were  incident  only  to  the  reversion  existing  between  the 
tenant  for  life  and  his  tenant,  the  defendant.  That  parti- 
cular reversion  not  surviving  its  owner,  there  was  nothing 
to  pass  to  the  plaintiff. 

It  is  evident  from  these  authorities,  that  when  a  party 
seeks  to  recover  rent  as  the  assignee  of  the  lessor,  as 
against  the  assignee  of  the  lessee,  the  question  is,  not 
whether  he  has  any  interest  or  estate  in  the  land,  but 
whether  he  has  the  reversion  immediately  connected  with 
the  tenancy.  If  he  has  a  greater  estate,  it  is  as  fatal  as 
though  he  had  a  less,  or  had  none  at  all.  He  must  have 
the  immediate  reversion  of  the  tenancy,  the  rent  of  which 
he  seeks  to  recover.  That  particular  estate  is  the  one  to 
which  rents  are  incident.  No  other  estate  will  answer. 
When  Judges  Wright,  Harris  and  Gould  admitted,  there- 
fore, that  the  reversion  was  in  the  State,  and  still  continued 
there ;  that  it  was  not  in  the  plaintiffs,  and  that  it  never 
existed  in  Stephen  Yan  Rensselaer  the  grantor  of  the  deeds 
in  question,  they  then  decided  the  cases  in  favor  of  the 
defence,  so  far  as  the  law  was  concerned.  The  decisions 
against  the  defendants,  were  therefore  arbitrary.  In  the 
arguments  submitted  by  them  to  sustain  the  decisions, 
they  acknowledge  that  the  law  as  heretofore  construed, 
cannot  support  them.  But  that  law,  they  assert,  is  not 
justice,  is  not  the  perfection  of  reason,  and  must  therefore 


54 


be  conformed  to  their  rules  of  logic  and  their  notions  of 
equity.  It  is  true,  say  they,  the  defendants  owned  the  fee, 
the  State  has  the  reversion  of  that  fee,  and  the  plaintiffs  no 
estate  in  the  premises ;  but  the  perfection  of  reason 
requires  that  those  who  have  the  reversion  and  those  who 
have  not,  should  be  treated  precisely  alike. 

There  are  other  classes  of  cases,  and  they  are  numerous, 
which  hold  the  rule  that  covenants  to  run  with  the  land 
require  two  estates,  the  reversion  and  the  tenancy.  Where 
a  party  mortgages  his  premises  and  subsequently  leases, 
the  mortgagee  has  no  remedy  for  the  recovery  of  the  rent, 
for  want  of  legal  privity.  But  where  the  lease  is  made 
anterior  to  the  mortgage,  the  mortgagee  can  enforce  the 
covenants  because  the  lessor's  reversion  comes  to  him,  and 
with  it  the  privity  of  estate  which  was  created  by  the  lease 
between  the  lessor  and,  the  lessee.  For  cases  of  this  class 
see  Baldwin  vs.  Walker,  21  Conn.  R.,  168  ;  Simers  vs. 
Saltus,  3  Denio,  214;  Lane  vs.  King,  8  Wen.,  584; 
McKircher  vs.  Hawley,  16  John.,  288. 

One  only  of  these  decisions  is  foreign.  That  being  a 
Connecticut  decision  may  be  regarded  by  Judge  Gould 
almost  as  good  as  a  native  one.  In  the  case  in  16  John., 
Chief  Justice  Spencer,  who  gave  the  opinion  of  the  court, 
among  other  things,  stated :  "  The  mere  legal  ownership  of 
the  land  cannot  authorize  either  an  action  or  a  distress  for 
the  rent." 

He  also  used  the  following  language : — <e  After  a  pretty 
full  consideration  of  the  case,  I  incline  to  the  opinion  that 
a  mortgagee  of  the  premises  cannot  distrain  for  rent  accru- 
ing on  a  lease  given  by  the  mortgagor  subsequent  to  the 
mortgage.  There  is  no  adjudged  case  which  countenances 
the  contrary  doctrine,  and  there  are  strong  reasons  against 
it,  arising  from  the  consideration  that  there  is  no  privity 
of  contract  or  estate  between  such  a  mortgagee  and  the 
tenant." 


55 


Again,  in  speaking  of  distress,  he  said  :  "  It  will  in  no 
case  lie,  unless  an  action  could  be  maintained  for  the  rent; 
and  if  there  be  no  privity  of  contract  or  estate,  most  cer- 
tainly an  action  could  not  be  maintained." 

The  privity  of  estate  to  which  he  referred,  was  clearly 
the  term  or  tenancy  in  the  one  party  and  the  reversion 
consequent  to  that  term  or  tenancy  in  the  other.  "  The 
mere  ownership  of  the  land,"  was  not  enough. 

It  is  true  that  the  cases  we  are  reviewing  differ  from  the 
case  in  16  John,  in  this  respect.  In  that  case  the  party 
claiming  had  the  legal  ownership  of  the  land  ;  but  not 
having  the  term  immediately  consequent  to  the  tenancy,  it 
was  held  that  he  could  not  recover.  In  these  cases  the 
parties  claiming  rents,  not  only  lack  the  reversion  of  the 
tenancy,  but  they  have  no  legal  or  even  equitable  owner- 
ship of  the  lands.  Will  our  learned  Judges  pretend  that 
therein  is  a  circumstance  in  favor  of  the  Plaintiffs  ?  If  so, 
what  becomes  of  their  equalizing  doctrine,  that  those  who 
own,  and  those  who  do  not  own  lands,  are  to  be  placed 
upon  the  same  footing  ?  Are  the  latter  to  have  the  ad- 
vantage ?  9 

Again  in  the  case  upon  which  Chief  Justice  Spencer  was 
passing,  the  party  of  whom  rent  was  claimed,  did  not  own 
the  lands. 

In  the  .cases  under  review,  the  parties  against  whom  the 
claim  is  made,  are  the  absolute  owners,  except  the  rever- 
sion or  escheat  thereof  in  the  State.  Is  this  a  circumstance 
against  the  defence  in  these  cases  ?  If  so,  let  us  again  ask 
the  question,  what  becomes  of  the  doctrine  that  those  who 
own  and  those  who  do  not  own  the  lands,  are  upon  the 
same  footing  ?    Is  it  better  upon  both  sides  not  to  own  ? 

There  is  still  another  class  of  cases  demonstrating  more 
forcibly,  if  possible,  the  requisition  of  the  two  estates  and 
the  absolute  legal  right  of  the  reversioner  instead  of  the 
covenantee  to  all  the  covenants  incident  to  the  reversion. 
Prominent  among  that  class  is  Peck  v.  Northrop,  17  Conn., 


56 


Rep.  217.  It  was  an  action  of  assumpsit  for  the  use  and 
occupation  of  certain  premises.  The  plaintiff  relied  upon 
a  lease  from  himself  to  the  defendants,  of  the  date  of  April 
8,  1837,  for  the  term  of  three  years,  for  $50  a  year.  The 
defendants  admitted  possession  under  the  lease  for  the 
three  years,  and  that  no  rent  had  been  paid  to  any  one. 
They  then  introduced  in  evidence  a  quit-claim  deed  from 
the  lessor  to  another  party  of  the  date  of  October,  1837. 
The  lease  upon  which  the  action  was  brought  was  of  the 
date  of  April,  1837.  There  was  no  pretence  that  the 
grantee  of  the  quit-claim  deed  ever  demanded  rent  or  noti- 
fied the  defendants  of  his  deed.  The  defence  was  held  to 
be  good.  It  was  said  that,  "  a  conveyance  of  leased  pre- 
mises, by  the  lessor,  passes  to  the  grantee  the  rents  there- 
after accruing  as  incident  to  the  reversion  ;  and  the  lessor 
cannot  sustain  an  action  for  such  rent  against  the  lessee." 

In  Moss  v.  Gallimore,  1  Douglass,  279,  it  was  held  that 
the  mortgagee  of  the  lessor  was  entitled  to  the  rents,  ac- 
cruing after  the  mortgage.  See  also  Burden  v.  Thayer,  3 
Metcalf,  76,  and  Pollock  v.  Cronise,  12  How.  Pr.  Rep.,  363. 

According  to  the  decisions  under  review,  these  cases  are 
all  wrong.  The  reversion  is  not  material.  The  covenants 
are  not  incidents  of  the  reversion,  but  of  the  ''entity."  A 
man  might  lease  his  farm  for  a  term  of  years,  reserving 
rent,  a  id  then  sell  it  and  still  retain  the  rents  upon  his 
lease,  through  this  third  estate.  In  selling  his  farm  he 
would  only  be  parting  with  the  reversion  immediate  to"  his 
lease  for  years.  And  if  upon  the  alienation  he  should  re- 
serve rents,  he  could  enforce  them  also.  For  though  the 
reversion  would  not  be  in  him,  he  would  by  the  covenants 
have. the  ''entity."  He  would  have  two  "entities"  with 
rents  incident  to  each,  and  might  thus  have  two  rent-rolls 
upon  the  same  premises ;  one  upon  the  lease  for  two  years, 
and  one  upon  his  alienation  in  fee.  It  is  possible  that  the 
new  doctrine  of  "  entity  "  may  be  made  to  do  even  more 
than  to  duplicate  rent-rolls.    If  the  reasoning  upon  which 


57 


it  is  founded  be  good  for  one  rent-roll,  it  must  answer  just 
as  well  for  two. 

There  is  a  class  of  cases  presenting  covenants  held  to  be 
merely  personal,  though  concerning  lands,  because  they  are 
connected  with  no  interest  recognized  at  common  law  as  an 
estate  in  land. 

Wheelock  vs.  Thayer,  16  Pick,  68,  is  of  that  order.  It 
was  an  action  for  covenants  broken.  The  covenants  were 
contained  in  a  deed  from  defendant  to  one  Henshaw.  The 
plaintiff  claimed  as  Henshaw's  assignee.  -The  deed  pur- 
ported to  convey  a  privilege  of  drawing  water  from  a  pond, 
and  the  covenant  was  one  of  seisin  and  right  to  sell-  On 
the  part  of  the  plaintiff  it  was  claimed  that  the  deed  was 
the  conveyance  of  an  interest  in  real  estate,  and  therefore 
the  covenants  run  with  the  land.  The  Court,  Wilde  J.  de- 
livering the  opinion,  held  that,  "  this  covenant  could  not 
run  with  the  land,  for  no  land  was  granted,  and  to  make  a 
covenant  run  with  the  land,  it  is  not  sufficient  that  it  is  of 
and  concerning  land." 

Croade  vs.  Ingraham  et.  al.  13  Pick.  33,  is  another  of  that 
order  of  cases.  It  was  an  action  of  covenant  for  rent 
against  the  defendants  as  the  assignees  of  Jabel  Ingraham, 
upon  his  covenant  in  a  lease  made  to  him  by  the  plaintiff. 
The  plaintiff  had  a  right  of  dower,  but  not  admeasured,  in 
certain  premises  of  which  Ingraham  had  possession.  She 
leased  to  him  all  her  right  therein,  reserving  as  rent  there* 
for  $190  per  year  which  he  covenanted  to  pay.  He  assign- 
ed to  the  defendants,  and  the  action  was  brought  against 
them  as  assignees.  There  was  judgment  for  the  defendants. 
It  was  held  that  the  widow,  her  dower  not  being  assigned, 
had  no  estate  which  could  pass  to  the  assignee  wherewith 
the  covenant  could  run.  u  And  for  the  same  reason  such 
annual  payment  could  not  be  deemed  a  rent." 

In  these  cases  the  covenants  were  held  to  be  personal, 
and  therefore  not  a  burden  upon  the  assignee  ;  not  because 
there  were  not  two  interests  involved,  a  possessory  one,  on 
8 


58 


the  one  hand,  and  a  reversionary,  on  the  other,  but  because 
these  interests  were  not  real  estate  within  feudal  meaning,  to 
which  covenants  could  be  attached. 

There  are  many  other  cases  reported  where  the  estates 
are  held  to  be  the  controlling  features  to  constitute  landlord 
and  tenant,  while  the  owners  for  the  time  being  are  inci- 
dents who  must  conform  to  the  requisitions  affixed  to  the 
estates.  And  those  estates  must  be  the  tenancy  on  the  one 
hand  and  its  immediate  reversion  on  the  other.  Of  that 
character  are  Whitton  v.  Peacock,  2  Bing.  N.  C.  -ill  ; 
Pargeter  v.  Harris,  53  Eng.  Com.  L.  Rep.  708;  Flight  v. 
Glossop,  2  Bing.  N.  C.  125  ;  Canham  v.  Rust,  8  Taunt.  227; 
Pascoe  v.  Pascoe,  3  Bing.  N.  C.  898  ;  Prescott  v.  De  Forest, 
16  John,  159  ;  Benson  v.  Bolles,  8  Wen.  175. 

The  last  case  cited  is  peculiar  .in  this  ;  it  was  there  held 
that  two  parties  may  be  both  landlord  and  tenant  each  to 
the  other,  in  the  same  premises  and  at  the  same  time.  Bol- 
les leased  to  Benson  and  Felthousen,  and  the  latter  under- 
let to  one  Betts.  The  first  lease  was  for  as  many  years  as 
they  thought  proper,  at  $100  rent  per  year,  with  the  provi- 
sion that  if  Benson  and  Felthousen  ^occupied  the  piemises 
for  seven  years,  Bolles  was  to  pay  them  $50  for  repairs. 
Betts  remained  in  possession  until  fourteen  days  before  the 
expiration  of  the  seven  years,  when  he  sold  out  to  Bolles, 
the  Landlord  of  Benson  and  Felthousen,  who  occupied  for 
the  remainder  of  the  term.  Benson  and  Felthousen  then 
sued  Bolles  in  an  action  of  covenant  to  obtain  the  $50  for 
repairs.  The  defence  was  that  they  had  not  occupied  the 
seven  years  ;  that  the  premises  were  surrendered  when  Bolles 
took  them  from  Betts. 

It  was  decided  that  Bolles  was"  substituted  in  the  place  of 
Betts  as  the  tenant  of  Benson  and  Felthousen,  for  the  re- 
mainder of  the  term  ;  and  that  his  possession  for  the  residue 
of  the  seven  years  was  the  possession  of  the  plaintiffs,  and 
therefore  the  plaintiffs  were  entitled  to  recover  the  $50. 

These  parties  were  adjudged  to  hold  these  relations : 
Bolles  was  the  landlord  of  Benson  and  Felthousen  for  the 


59 


term  created  between  them.  He  had  the  reversion  of  that 
tenancy,  and  they  the  tenancy  itself.  Between  the  two 
latter  and  Betts,  was  another  set  of  estates,  the  reversion 
of  which  was  in  the  one,  and  the  tenancy  in  the  other. 
Bolles,  by  taking  Bett's  estate,  assumed  Bett's  relation  to 
Benson  and  Felthousen,  while  he  still  retained  his  own  to 
the  same  parties. 

The  authorities  referred  to,  show  conclusively  that 
privity  of  estate,  such  as  is  required  to  make  one  party 
the  debtor  of  another,  upon  convenants  which  were  made 
by  others,  is  the  result  of  tenure,  and  subsists  by  virtue  of 
the  relation  of  landlord  and  tenant ;  and  that  such  tenure 
exists  between  the  tenancy  of  the  one  party  and  the  imme- 
diate reversion  of  the  other,  and  can  be  constituted  and 
exist  in  no  other  way. 

The  elementary  writers  concur  in  that  view.  A  few  of 
them  may  be  referred  to.  Chamber's  Land  and  Ten.,  p. 
587,  declares  the  rule  as  follows  : 

"  The  reversion  to  which  rent  is  incident,  and  on  which 
the  whole  relation  of  landlord  and  tenant  depends,  is  the 
immediate  reversion ;  if,  therefore,  the  immediate  rever- 
sioner surrender  his  estate,  or  it  becomes  merged  by  the 
accession  of  the  next  immediate  estate  in  reversion,  the 
rent  and  all  the  benefits  of  the  contract  are  gone  with  it." 

Taylor's  Land  and  Ten.,  §  16  :  u  It  is  essential  to  a  lease, 
also,  that  some  reversionary  interest  be  left  in  the  lessor ; 
for  if  he  parts  with  his  whole  interest  in  the  premises,  or 
makes  a  lease  for  a  period  exceeding  his  term,  it,  in  either 
case,  amounts  to  an  assignment." 

And  again,  §  109 :  "  An  assignment  transfers  the  whole 
interest  of  the  lessee  to  the  assignee ;  and  if  the  whole 
interest  is  conveyed,  the  essence  of  the  deed,  as  an  assign- 
ment, will  not  be  destroyed  by  its  reserving  a  rent  to  the 
assignor,  and  a  power  of  re-entry  for  non-payment,  or  by 
its  assuming,  by  the  use  of  the  word  demise,  or  in  any 
other  respect,  the  character  of  a  lease." 


60 


Again,  §  125 :  "  It  is  obvious  that  a  permanent  lease  of 
lands  under  mortgage,  can  only  be  secured  by  the  concur- 
rence of  both  the  mortgagor  and  mortgagee,  the  former  to 
demise  and  lease,  the  latter  to  ratify  and  confirm,  such  a 
lease  operates  during  the  continuance  of  the  mortgage,  as 
the  demise  of  the  one  and  the  confirmation  of  the  other  ; 
but  after  the  mortgage  is  paid  off,  as  the  demise  of  the 
latter  and  confirmation  of  the  former.  Where  both  concur 
in  the  grant,  the  covenants  on  the  lessee's  part  should  be 
entered  into  with  the  mortgagee,  with  a  view  to  their  run- 
ning with  the  land.  If  entered  into  with  the  mortgagor 
they  are  merely  covenants  in  gross,  and  of  no  value  to  an 
assignee  of  the  mortgage." 

This  author  has  also  overlooked  the  "  entity"  which  the 
covenantee  gets  by*  the  covenant  itself.  The  mortgagor 
has  only  the  equity  of  redemption  and  to  that,  it  is  true, 
covenants  cannot  be  annexed  so  as  to  run  with  the  land. 
Such  an  interest  is  not  a  thing  of  substance  sufficient  to 
uphold  and  carry  covenants.  But,  according  to  Judges 
Harris  and  Wright,  the  covenant  itself  invested  the 
"entity"  in  the  covenantee,  and  that  was  a  sufficient 
estate  to  sustain  the  covenant. 


Number  VII. 


The  Irish  Cases  —  The  only  authority  in  the  books  to  sustain  the  decisions 
under  review  —  Those  decisions  overruled  by  the  House  of  Lords  of 
England  —  The  Irish  Court  refused  to  hear  argument  upon  the  point,  that 
rent  could  not  exist  without  a  reversion  —  Our  Court  decides  without 
argument  —  Statement  of  our  decisions,  ending  with  those  under  review. 
What  is  a  rent,  what  a  landlord,  and  what  a  tenant  —  Cases  holding  coven- 
ants not  to  run  with  the  land,  for  the  want  of  the  reversion  in  the 
covenantee  —  Randall  v.  Rigby,  4  Meeson  and  Welsby  Rep.  p.  130  —  Ply- 
mouth v.  Carver,  16  Pick.,  185. 

There  are  cases  which  sustain  the  opinions  under  re- 
view. They  are  confined  to  ona  country,  and  to  one 
period.  Our  Judges  of  the  3d  Judicial  District  have  not 
referred  to  them.  The  association  may  not  have  been 
agreeable.  They  are  cases  decided  in  Ireland  by  courts 
designed  to  administer  the  law3  in  favor  of  English  land- 
lords, and  against  Irish  tenants.  The  same  difficulty  was 
encountered  in  sustaining  some  of  the  claims  there  which 
the  Judges  of  the  3d  Judicial  District  have  encountered 
here.  Like  the  plaintiffs  in  the  cases  under  review,  the 
claimants  of  rent  there;  had  no  reversion  or  estate  in  the 
land.  Under  different  outside  circumstances,  this  would 
have  been  regarded  an  insurmountable  obstacle.  There, 
as  h8re,  the  judges  met  it  boldly.  Whatever  other  quality 
might  have  been  wanting,  there  was  no  lack  of  audacity. 
They  had  undertaken  to  sustain  the  assumption  of  land- 
lordism in  behalf  of  the  claimants,  and  they  were  not  to 
be  thwarted  by  the  fact  that  the  plaintiffs  had  no  lands  or 
estate  in  lands  to  sustain  their  assumption. 

One  of  these  cases  was  Coyne  v.  Smith,  (Bat.  90,  N.) 
It  was  an  action  of  ejectment  for  the  non-payment  of  rent. 
It  was  not  brought  under  a  fifteen  days'  notice  law,  for 


62 


oppressed  and  starved  as  Irish  tenants  have  been,  they 
have  never  been  subjected  to  legislation  so  atrocious  as 
our  fifteen  days'  notice  law,  as  construed  by  its  original 
projector. 

In  Coyne  v.  Smith,  counsel  took  the  point  that  the  ac- 
tion could  not  be  supported  in  favor  of  a  party  who  had 
not  the  reversion.  The  court  stopped  him.  The  want  of 
the  reversion,  they  declared,  was  no  valid  objection  to  the 
action  of  ejectment  for  non-payment  of  rent ;  and  they 
would  not  hear  argument.  They  further  held  that  the 
ejectment  statutes  were  to  be  construed  in  favor  of  the  re- 
lation of  landlord  and  tenant,  and  that  there  were  sufficient 
grounds  for  holding  this  to  be  a  case  within  the  benefit  of 
those  statutes. 

The  Irish  cases  may  have  served  as  precedents  for  the 
decisions  under  review.  The  refusal  to  hear  argument, 
the  rule  of  construction,  the  fixed  resolve  to  sustain  the 
assumptions  ostentatiously  announced,  are  so  strictly  in 
keeping,  the  one  with  the  other,  as  to  induce  the  belief  that 
the  one  is  a  copy  of  the  other.  It  is  not  probable  that  the 
world  can  have  furnished  two  such  originals. 

In  one  respect  only  does  the  analogy  fail.  In  the  Irish 
Exchequer  Chamber,  to  which  one  of  the  cases  had  been 
brought  by  writ  of  error  from  the  Common  Pleas,  the 
judges  were  not  unanimous  in  affirrojng.  They  stood  six  to 
four  That  case  was  carried  to  the  English  House  of  Lords, 
where  the  judgments  of  the  Irish  Courts  were  unanimously 
reversed — Pluck  vs.  Digges,  2  Dow  &  Clark,  189. 

One  of  the  points  submitted,  was,  that  since  the  Statute 
of  quia  emptores,  a  reversion  in  the  lessor  immediately  ex- 
pectant on  the  demised  term  is  necessary  to  constitute  the 
relation  of  landlord  and  tenant  between  the  parties,  and 
consequently  to  sustain  the  action. 

Lord  Tenterden  delivered  the  opinion  of  the  Court. 
Among  other  things,  he  said  : 


63 


"  Now,  this  cannot  be  considered  a  rent  service,  or  as  rent 
reserved  between  landlord  and  tenant,  as  there  can  be  no 
such  rent  without  a  reversion,  as  the  whole  interest  is 
assigned.  The  power  of  entry  and  distress  is  reserved. 
But  there  is  nothing  to  constitute  a  reversion." 

The  decision  of  the  highest  Court  of  England  put  an  end 
in  Ireland  to  the  judicial  institution  of  lord's  without  lands. 

The  decision  of  the  Court  of  Appeals  in  the  De  Peyster 
case  performed  the  same  work  here.  That  Court  has  since 
recognized,  and  still  recognizes,  the  rule  there  established. 
(See  2  Seld.,  510  ;  Nicoll  vs.  Erie  Railroad  Co.,  2  Ker.,  138.) 

The  English  and  Irish  cases  upon  this  subject  are  com- 
mented upon  in  1  Piatt  on  Leases,  pp.  9,  19.  That  learned 
elementary  writer,  upon  a  review  of  them,  concludes  with 
this  emphatic  and  unambiguous  language  :  "  I  have  not 
hesitated,  in  the  definition  of  a  lease,  to  speak  of  a  rever- 
sion as  a  condition  indispensable  to  its  existence  ;  and  we 
may  also  conclude  that,  where  all  the  grantor's  estate  is 
transferred,  the  instrument  will  operate  as  an  assignment, 
notwithstanding  the  reservaticn  of  a  rent  to  the  grantor,  or 
a  right  of  re-ealtry  on  non-payment,  or  on  the  non-perfor- 
mance by  the  grantee,  of  covenants  contained  in  it,  and 
although  words  of  demise  be  used  instead  of  words  of 
assignment." 

The  writer's  language  is  no  stronger  than  the  cases  he 
refers  to,  warrant.  No  authorities  to  the  contrary  can  be 
found,  except  the  Irish  decisions  which  were  overruled  by 
the  House  of  Lords,  until  we  come  down  to  Main  v.  Fea- 
thers, by  Judge  Gould.  He  there  concluded  that  a  reversion 
was  unnecessary,  and,  despite  his  prejudices  against  foreign 
decisions,  went  off  with  the  Irish  Courts  upon  the  ground 
that  a  right  to  distrain  was  an  estate  in  the  land.  He  con- 
ceived the  idea  that  if  the  owner  of  a  farm,  to  secure  a  per- 
sonal debt,  should  agree  that  his  creditor  might  come  upon 
his  farm  and  take  a  horse  or  an  ox,  if  he  could  find  one  and 
catch  him,  the  credicor  thereby  acquired  an  estate  in  the 
farm  itself,  whereby  the  debt,  otherwise  personal,  became 


64 


fastened  to  the  land,  so  that  every  subsequent  owner  of  the 
farm  would  be  liable  to  pay  it;  and  if  at  any  time  the 
horse  or  the  ox  could  not  be  found  or  caught,  the  creditor 
or  his  assignee  became  at  once,  without  further  conveyance 
or  ceremony,  the  owner  of  the  f£rm  and  entitled  to  imme- 
diate possession.  This  was  the  first  case  of  the  class  next 
to  the  Irish  cases. 

Next  followed  Van  Rensselaer  vs.  Bonesteel,  by  Judge 
Harris,  assuming  to  be  a  decision  by  the  General  Term  of 
the  Supreme  Court,  and  holding  that  the  relations  of  land- 
lord and  tenant  were  fallacies  only  fitted  for  counsel  to  talk 
about,  but  utterly  unworthy  of  consideration  by  the  Court. 
He  could  find  a  dictum  of  Lord  Holt,  in  a  very  old  case, 
holding  that  that  relationship  might  possibly  be  necessarily 
connected  with  rent ;  but  Lord  Holt's  associates  dissented 
from  him.  Excepting  that  solitary  dictum,  he  could  not 
find  that  it  had  ever  been  held  but  that  a  vendor  of  lands 
could  reserve  rents'  as  effectually  as  a  lessor.  An  elaborate 
opinion,  written  by  himself  more  than  seven  years  before, 
wherein  he  had  come  to  the  conclusion  that  the  covenants 
did  not  run  with  the  laud,  and  that  Yan  Rensselaer  could 
not  enforce  them  against  the  owners  thereof,  he  did  not 
find.  In  the  Bonesteel  case,  his  opinion  breathes  an  indig- 
nant surprise,  that  counsel  should  so  far  forget  the  respect 
due  to  the  Court,  as  to  undertake  to  maintain  that  a  vendor 
of  lands,  having  parted  with  all  his  estate,  could  not  still 
reserve  rents  to  himself  to  run  with  the  land. 

Next  in  order,  after  twelve  months'  deliberation,  come 
decisions  by  Judges  Wright,  Harris  and  Gould,  in  the  cases 
under  review.  As  before  shown,  they  hold  that  the  relations 
of  landlord  and  tenant  must  exist  and  the  rent  must  be  rent- 
service,  or  the  assignee  cannot  enforce  it  against  an  assignee, 
by  action  of  covenant  or  ejectment.  These  decisions  over- 
rule Judge  Harris  in  Van  Rensselaer  vs.  Gilford,  Van  Rens: 
selaer  v.  Chadwick  and  the  Bonesteel  case,  reported  24 
Barbour  where  he  had  expressly  held  the  rent  to  be  a  rent 
charge,  and  the  plaintiff  not  a  landlord.    But  in  the  opinions 


65 


under  review,  while  overruling  the  holding  in  the  Bonesteel 
case,  they  sustain  that  decision  by  declaring  it  to  be  a  fallacy 
to  contend  that  to  make  a  landlord,  there  is  need  that  the 
reversion  should  remain  in  him.  The  covenant  is  enough. 
They  fall  back  upon  the  Irish  decisions.  They  have  discov- 
ered, however,  what  was  not  discovered  in  Ireland,  that  the 
covenant  carried  with  it  and  vested  in  the  covenantee,  not 
the  reversion,  but  the  "  entity  ;,;  to  use  their  own  language, 
u  an  entity  assignable  with  its  remedies,  as  against  the  assignees 
of  the  grantee  or  lessee,  to  be  enforced  by  entry  for  non-payment 
of  rent,  or  other  forfeiture."  It  is  evident  that  these  men 
either  knew  nothing  of  the  meaning  of  the  words  they  were 
using,  or  that  they  intended  to  misguide  and  deceive  others, 
whom  they  assumed  to  know  less  than  themselves.  To  call 
a  party  the  landlord  of  a  tenancy  who  has  not  the  immediate 
reversion,  is  an  abuse  of  well  defined  phraseology.  Every 
decision  made,  except  the  Irish  cases,  every  dictionary  and 
every  elementary  law  book  treating  of  the  subject,  define 
the  word  landlord  to  represent  the  owner  of  lands  or  houses 
who  has  tenants  under  him. 

In  applying  the  word  tenant  to  the  defendants  as  charact- 
erising their  relations  to  the  plaintiffs,  they  were  guilty  cf 
as  great  an  abuse  of  phraseology.  In  like  manner  they  mis- 
use the  word  rent.  A  tenant  is  a  party  who  has  the  tem- 
porary possession  of  lands,  the  title  of  which  is  in  another, 
of  whom  he  holds.  Rent  is  the  sum  paid,  or  the  service 
rendered  by  the  one  to  the  other  for  such  temporary  posses- 
sion. Our  Judges  will  find  that  they  gain  nothing  by  de- 
nominating a  party  a  landlord  who  has  not  the  reversion, 
and  who  has  no  estate  in  the  lands.  They  can  gain  nothing 
by  denominating  the  owner  in  fee  the  tenant  of  a  stranger 
to  the  lands.  And  the  word  rent,  when  applied  to  the 
consideration  price,  for  which  lands  have  been  sold  instead 
of  leased,  will  not  subserve  the  purpose  which  they  have 
attempted  to  make  it.  The  principles  and  the  authorities 
cannot  be  evaded  by  any  such  play  upon  words. 
9 


66 


We  have  already  cited  the  rule  in  Vyvyan  v.  Arthur,  1 
Barn.  &  Cress,  p.  410,  by  Best  J.  It  will  bear  repetition  in 
this  connection  :  "  If  the  performance  of  the  covenant  be 
beneficial  to  the  reversioner  in  respect  of  the  lessor's  de- 
mand, and  to  no  other  person,  his  assignee  may  sue  for  it  ; 
but  if  it  be  beneficial  to  the  lessor,  without  regard  to  his 
continuing  owner  of  the  estate,  it  is  a  mere  collateral  cove- 
nant, upon  which  the  assignee  cannot  sue." 

It  is  obvious  that  that  rule  imperatively  requires  two 
estates  to  make  covenants  run  with  the  land.  One  of  those 
estates  must  be  the  reversion.  If  there  be  no  reversion, 
there  can  be  no  reversioner,  and  no  grantee  of  a  reversion, 
and  then  the  covenant  must  be  payable  to  the  covenantee 
alone,  and  therefore  collateral,  or  in  gross. 

But  this  is  only  one  side  of  the  relations.  A  covenant 
which  is  beneficial  to  the  reversioner  alone  must  be  a  burden 
upon  another  estate  in  the  same  premises,  corresponding  to 
and  held  of  the  reversion.  Covenants  run  with  +he  land 
in  a  two-fold  manner.  Piatt  in  his  work  on  leases,  2d  Vol., 
p  401  expresses  the  rule  as  follows  : 

"  Covenants  which  being  entered  into  by  the  lessee,  fall 
as  charges  on  his  assignee,  will,  if  entered  into  by  the  lessor* 
fall  as  charges  on  the  grantee  of  the  reversion  ;  and  where 
on  the  one  hand,  the  grantee  of  the  reversion  may  maintain 
an  action  against  the  lessee  or  his  assignee,  there,  on  the 
other  mutatis  mutandis,  an  action  may  be  maintained  by  the 
lessee,  or  his  assignee,  against  the  grantee  of  the  reversion. 
In  other  words,  the  rights,  liabilities  and  remedies  are  reci- 
procal, and  attach  on  the  term  on  the  one  part,  and  on  the 
reversion  on  the  other,  until  the  expiration  or  sooner  de- 
termination of  the  tenancy." 

In  1  Smith's  Leading  cases,  p.  27,  notes  to  Spencer's  case, 
is  the  following  :  "  A  covenant  is  said  to  run  with  land, 
where  either  the  liability  to  perform  it,  or  the  right  to  take 
advantage  of  it  passes  to  the  assignee  of  that  land.  A 
covenant  is  said  to  run  with  the  reversion,  when  either  the 


67 


liability  to  perform  it,  or  the  right  to  take  advantage  of  it, 
passes  to  the  assignee  of  that  reversion." 

The  owner  of  the  reversion  becomes  liable  to  fulfil  such 
covenants  as  the  lessor  may  have  imposed  as  a  burden  there- 
on, as  well  as  entitled  to  the  benefits  of  such  as  were  an- 
nexed for  that  purpose.  The  tenant  is  also  entitled  to 
covenants  benefitting  as  well  as  liable  to  those  which  are 
burdensome.  The  covenants  of  each  party  run  with  the 
land  in  a  two  fold  manner  ;  each  as  a  burden  upon  one 
estate,  and  each  as  a  benefit  to  the  other.  In  this  way  the 
assignees  become  mutually  bound  to  each  other  by  the  same 
covenants,  which  bound  together  the  parties  who  created 
the  estates,  made  the  covenants,  and  connected  the  one  with 
the  other. 

It  requires  no  argument  to  prove  that  the  decisions  under 
review  cannot  be  brought  within  that  rule.  The  plaintiffs' 
claim  to  own  the  covenants  as  grantees  of  the  covenantees* 
reversion.  They  claim  in  no  other  way.  It  is  therefore 
self  evident  that  if  the  covenantee  had  no  reversion,  the 
plaintiffs  are  not  the  grantees  thereof.  The  court  declare 
that  the  reversion  was  in  the  State,  and  not  in  the  covenantee. 
As  this  disposed  of  the  right  of  recovery  set  forth  in  the 
pleadings  adversely  to  the  plaintiffs,  it  became  necessary  to 
save  them  in  spite  of  their  own  counsel.  Hence  the  latter 
are  judicially  addressed  substantially  to  this  effect :  "  You 
do  not  understand  your  case.  It  is  well  for  the  cause  of 
justice  that  some  of  the  judges  are  wiser  than  you  are. 
Opposing  counsel  and  yourselves  have  been  misled  by  the 
unadvised  decisions  of  our  own  courts,  particularly  by  the 
decision  in  the  De  Peyster  case.  Those  decisions,  supposed 
that  our  statutes  meant  just  what  the  same  statutes  meant 
in  England.  This  was  a  misapprehension  arising  from  the 
unrighteous  influences  of  foreign  decisions.  It  is  due  to 
pure  morals  and  sound  equity  to  announce  that  statutes  which 
in  England  prevented  the  reservation  of  rents  upon  grants 
in  fee,  when  copied  here,  produced  exactly  the  opposite 
effect." 


68 


A  great  many  cases  are  reported  not  herein-before 
noticed  where  covenants  have  been  held  not  to  run  with 
the  land  for  the  want  of  an  estate  in  the  covenantee. 

Randall  vs.*  Rigby,  4  Meeson  &  Welsby's  Rep.,  p.  130, 
was  an  action  of  debt  brought  against  the  covenantor. 
The  defendant  was  the  grantee  of  lands  by  deeds  in  fee 
wherein  he  had  covenanted  to  pay  a  yearly  rent  of  .£63. 
There  was  a  demurrer  to  the  declaration.  The  point  was, 
that  debt  would  not  lie  because  no  privity  of  estate  existed 
between  the  covenantor  and  covenantee.  Counsel  for  the 
defendant  contended  that  the  covenant  being  in  gross  and 
also  collateral,  there  was  no  such  direct  duty  as  will  enable 
the  plaintiff  to  maintain  an  action  of  debt.  Counsel  for 
plaintiff  conceded  that  it  was  a  collateral  contract,  but 
contended  that  plaintiff  was  at  liberty  to  elect  to  bring 
debt  or  covenant.    It  was  decided  against  the  plaintiff. 

Lord  Abinger  said  :  a  The  question  here  is  not  whether 
the  defendant  is  liable,  but  whether  he  is  liable  in  this  form 
of  action." 

Parke  B. :  "I  am  of  the  same  opinion.  No  doubt  this 
covenant  is  collateral  or  in  gross  in  one  sense,  that  it  does 
not  run  with  the  land  or  rent." 

That  case  is  precisely  in  point.  There  was  a  rent  upon 
a  grant  in  fee.  That  grant  in  fee  was  made  under  the 
statute  quia  emptores  and  therefore  passed  all  the  estate  of 
the  grantor.  He  had  no  reversion,  and  his  covenants  of 
rent  did  not  therefore  run  with  the  land.  He  failed  to 
recover  because  his  counsel  supposed  a  reversion  necessary 
to  attach  a  covenant  to  the  land,  and  the  Court  there,  were 
not,  as  here,  wiser  upon  that  point  than  the  counsel.  The 
"  entity  "  was  not  discovered. 

Plymouth  vs.  Carver,  16  Pick.,  185,  was  a  similar  case. 
The  town  of  Plymouth  had  made  a  deed  in  fee  of  a  certain 
farm  with  covenants  on  the  part  of  the  grantee  to  keep  in 
repair  a  certain  road.  The  grantee  who  made  the  cove- 
nants parted  with  the  farm,  and  the  action  was  brought 
against  his  grantee.  The  liability  of  the  defendant  was 
denied.    It  was  remarked  by  the  Court,  "  The  plaintiff 


69 


claims  to  recover  upon  the  writing  declared  upon,  as  a 
covenant  which  runs  with  the  land.  But  with  what  land 
is  this  covenant  running  1  No  right  or  estate  in  any  land 
is  conveyed  by  the  covenantors  to  the  inhabitants  of  the 
town." 

The  Supreme  Court  of  this  district  would  reverse  that 
case  if  it  was  brought  before  them.  The  Massachusetts 
Court  erred  in  declaring  no  right  or  estate  in  any  land  to 
be  conveyed  by  the  covenantors  to  the  town.  The  making 
the  covenants  conveyed  to  the  town  an  "  entity." 

The  three  Judges  here  might  have  found  another  point 
fatal  to  the  defence  in  the  Plymouth  and  Carver  case  accord- 
ing to  a  recent  decision  in  Aikin  agt.  The  Albany,  Vermont 
and  Canada  Railroad  Company,  decided  by  Mr.  Justice 
Gould  at  the  Rensselaer  Circuit — 26  Barb.    The  covenants 
being  to  make  and  keep  in  repair  a  road,  might  have  been 
held  to  run  with  the  road.    In  this  case  Judge  Gould  held 
that  a  covenant  to  construct  a  railroad  in  a  particular  man- 
ner, run  with  the  railroad  ;  and  as  the  railroad  was  built 
upon  an  embankment,  and  there  was  a  hole  through  or  to 
be  made  through  the  embankment,  and  the  sides  of  the 
same  must  be  sloped  and  lap  upcn  the  adjoining  land,  that 
the  covenants  not  only  run  on  the  railroad,  but  through 
the  hole,  and  with  the  land  on  both  sides  of  the  railroad. 
In  the  language  of  the  very  elaborate  opinion,  "  It  cannot 
be  questioned,  that  if  a  covenant,  it  is  one  that  runs  with 
both  the  farm  and  the  railroad  conjointly."    In  giving  his 
reasons  for  this  conclusion,  Judge  Gould  said :  "  The 
grantee  was  not  to  make  a  holt  in  an  embankment  not  in  esse, 
but  to  leave  a  road  not  covered  by  the  embankment  in  one 
place,  while  in  two  others  the  Company  was  to  build  the 
embankment  that  it  should  not  obstruct  the  way.    And  in 
regard  to  the  latter  two,  this  manner  of  building  would 
necessarily  make  them  slope  the  sides  of  the  embankment 
and  continue  (either  by  embankment  or  cutting)  their  own 
work  on  the  plaintiff's  adjoining  land  as  a  part  of  the  man- 
ner and  form  in  which  they  were  to  be  at  liberty  to  occupy 
and  enjoy  the  premises  granted." 


Number  VIII. 

Other  covenants,  than  those  for  rents,  held  not  to  run  vohh  the  land —  Cases  —  Hurd 
v.  Curtis  18  Pick  459  —  Taylor  v.  Owen  2  Blackford's  Rep.  301  —  Dolph  v. 
"  White  2  Kernan  2dQ  —  Keppel  v.  Bailey  2  Myln.  and  K.  517—  Opinion  af 
Lord  Brougham. 

There  are  numerous  cases  of  other  covenants  which  have 
been  held  to  be  merely  personal  for  the  want  of  an  estate 
in  the  covenantee. 

Hurd  v.  Curtis,  19  Pick  459,  is  in  point.  Four  several 
owners  of  property  on  the  same  river,  covenanted  together 
to  fix  the  quantity  of  water  which  the  several  parties 
should  have  a  right  to  draw,  and  to  regulate  the  use  of 
the  same.  They  covenanted  for  their  respective  assigns, 
as  well  as  for  themselves.  The  plaintiff  was  one  of  the 
parties  to  the  indenture.  The  defendants  were  grantees 
of  another  party,  and  had  violated  the  covenants.  The 
action  was  brought  to  recover  damages  for  the  breach  of 
the  covenant.  It  was  claimed  to  be  a  covenant  running 
with  the  land,  and  therefore  obligatory  upon  the  defen- 
dants as  assignees  or  owners  of  the  land.  It  was  also 
alleged  that  the  defendants  had  due  notice  and  full  know- 
ledge of  the  covenants  when  they  purchased.  The  defen- 
dants demurred,  and  the  case  was  disposed  of  upon  the 
demurrer.  It  was  ably  and  elaborately  argued.  The  de- 
murrer was  sustained,  and  the  defendants  had  judgment. 
The  point  of  the  case  was  whether  the  covenants  run  with 
the  land.  It  was  held  that  they  did  not,  but  were  merely 
personal,  on  the  ground  that  the  covenantee  had  no  rever- 
sion or  estate  in  the  land. 


71 


Wilde  J.  delivered  the  opinion,  holding  that  there  was 
no  privity  of  estate  between  the  contracting  parties.  He 
further  used  this  language  :  "  If  there  is  no  privity  of 
estate  between  the  contracting  parties,  the  assignee  will 
not  be  bound  by,  nor  have  the  benefit  of  any  covenants 
between  the  contracting  parties,  although  they  may  relate 
to  the  land  he  takes  by  assignment  or  purchase  from  one 
of  the  parties  to  the  contract.  In  such  a  case,  the  coven- 
ants are  personal  and  collateral  to  the  land." 

Here  is  a  case  where  the  covenant  must  have  vested  an 
"  entity  "  in  the  covenantee,  as  well  as  in  the  cases  under 
review.  It  is  possible  that  some  such  suggestion  may 
have  been  made,  Judge  Wilde  remarked  :  "  Their  estates 
were  several  and  there  was  no  grant  of  any  interest  in  the 
real  estate  of  either  party  to  which  the  covenants  could  be 
annexed.  The  stipulations  in  the  indenture  cannot  be 
construed  as  grants  and  covenants  at  the  same  time." 

Our  Judges  take  a  different  view  and  make  the  covenant 
both  a  grant  and  a,  covenant.  If  one  covenant  be  a  grant 
another  must  be.  If  one  transfers  an  "  assignable  entity," 
so  does  another.  Such  a  doctrine  would  end  in  making 
every  covenant  by  a  party,  who,  at  the  time,  owns  lands, 
a  burden  upon  the  land.  Judge  Gould  expressly  states 
such  to  be  the  rule  as  to  all  covenants  made  on  the  con- 
veyance of  premises  from  one  party  to  another.  The  ab- 
surdity of  such  a  rule  was  shown  by  Judge  Wilde  in  the 
cases  above  cited,  as  follows : 

"  They  are  mere  personal  covenants,  according  to  all  the 
authorities,  and  cannot  be  otherwise  construed,  without 
determining  that  all  covenants  concerning  lands  are  real 
covenants,  and  binding  on  the  assignee,  however  remote ; 
which  certainly  cannot  be  maintained,  either  upon  autho- 
rity or  principle.  Such  an  extension  of  the  obligation  of 
covenants  might  be  productive  of  great  mischief  and  con- 
fusion of  rights  and  obligations  of  the  purchasers  and 
owners  of  real  estate." 


72 


There  was  another  point  in  the  case  of  Hurd  v.  Curtis, 
which  seems  to  have  been  overlooked  by  Judge  Wilde, 
and  which,  in  the  Third  Judicial  District  of  this  State, 
might  have  saved  the  plaintiff's  right  of  action.  Though 
the  covenanting  parties  owned  the  lands  only  in  severalty, 
their  premises  were  adjoining.  In  Aikin  v.  the  Railroad 
Co.,  before  referred  to,  the  fact  that  the  parties  owned 
premises  adjoining  was  held  by  Judge  Gould  to  constitute 
privity  of  estate  sufficient  to  carry  the  covenants  along 
with  the  land.  This  is  the  language  of  the  opinion : 
4<  There  is  a  privity  of  estate  between  the  owners  of  the 
respective  premises  as  the  thing  to  be  done  concerns  the 
land  or  estate,  (of  both  in  connexion,)  and  that  is  the  me- 
dium which  creates  the  privity  between  them."  That 
rule  is  clearly  free  from  the  immoralities  of  any  foreign  or 
other  decision.  Nothing  resembling  it  will  be  found  of 
older  date. 

Taylor  v.  Owen,  2  Blackford's  Rep.,  301,  presents  a 
similar  case.  Owen  being  the  owner  in  fee  simple  of  the 
town  of  New  Harmony,  and  a  merchant  doing  business 
there,  sold  his  merchandize  to  plaintiff,  leased  to  him  his 
store,  and  covenanted  that  he  should  have  the  exclusive 
right  of  such  business  in  the  town  for  ten  years.  Owen 
then  leased  another  lot  to  one  Rogers  who  underlet  to  one 
Moffat,  who  commenced  vending  merchandize.  He  had 
notice  of  the  contract  between  Owen  and  Taylor.  Taylor 
filed  a  bill  in  equity  to  obtain  a  perpetual  injunction  against 
Moffat,  restraining  him  from  the  further  vending  of  mer- 
chandize in  the  town. 

The  bill  was  dismissed.  Blackford,  J.,  in  giving  the 
opinion,  said : 

"This  covenant  between  Owen  and  Taylor  is  entirely  of 
a  personal  nature.  It  neither  runs  with  the~  land  of  the 
covenantor,  nor  does  it  create  any  lien  thereon,  either 
legal  or  equitable." 


73 


As  to  the  notice  of  the  covenant,  he  said  :  "  We  put  out 
of  view  the  question  of  notice  in  this  case.  We  consider 
the  mere  circumstance  of  a  lessee's  notice  of  a  covenant 
like  the  present,  to  be  of  no  more  consequence  to  his  inter- 
est in  the  premises  than  his  knowledge  of  the  lessor's  having 
contracted  a  debt  would  be.  A  bona  fide  vendee  or  lessee 
of  real  property  for  a  valuable  consideration,  has  nothing 
to  do  with  these  personal  contracts." 

Dolph  v.  White,  in  our  Court  of  Appeals,  2  Kernan,  296, 
has  herein  before  been  referred  to.  It  adopts  the  same 
rule. 

Keppel  v.  Bailey,  2  Myl.  &  K.,  517,  is  a  prominent  case 
of  the  same  character.  The  facts  were  these  :  Certain 
lessees  of  the  Beaufort  Iron  Works  covenanted  with  cer- 
tain owners  of  the  Trevil  Railroad  and  others,  that  they 
would  procure  all  the  limestone  they  used  from  the  Trevil 
quarry  and  have  it  transported  on  the  Trevil  Railroad  at 
a  certain  price  per  ton.  The  covenant  was  made  for  them- 
selves, their  heirs  and  assigns.  The  term  of  the  lessee  in 
the  iron  works  isubsequently  came  to  the  Bailey3,  who  soon 
after  made  a  new  railroad  to  other  lime  quarries,  and  ne- 
glected to  fulfil  the  covenants  made  by  their  predecessors. 
A  bill  was  then  filed  by  the  owners  of  the  Trevil  Railroad, 
praying  an  injunction  to  restrain  the  Baileys  from  using 
the  new  railroad,  or  any  other  except  the  Trevil,  in  accord- 
ance with  the  covenants.  An  ex  parte  injunction  being 
allowed,  there  was  a  motion  to  dissolve  it,  which  was 
granted.  Lord  Chancellor  Brougham,  in  deciding  the 
motion,  wrote  a  very  elaborate  opinion.  He  reviewed  all 
the  previous  English  cases  upon  the  subject.  Among  other 
things,  he  expressed  himself  as  follows  : 

"  It  appears  to  me  very  clear,  that  the  covenant  does  not 
run  with  the  land,  and  therefore  is  not  binding  upon  the 
assignees  of  the  Kendalls.  This  is  the  opinion  which  I  have 
entertained  from  the  moment  I  saw  it,  which  further  reflec- 
tion has  only  served  to  confirm." 
10 


74 


The  prominent  reason  he  gave  for  his  conclusion  was,  in 
his  own  language,  that  "  the  parties  did  not  stand  in  the 
relation  of  lessor  and  lessee  towards  each  other,  and  there 
is,  therefore,  no  reversionary  interest  now  in  the  covenantees 
to  which  the  right  claimed  against  the  assignees  of  the 
covenantor  may  be  annexed  ;  and  those  assignees  are  called 
upon  to  perform  the  covenant  solely  in  respect  of  the  estate 
which  they  have  purchased,  and  in  respect  of  persons  who, 
except  under  that  covenant,  have  no  connection  whatever 
with  the  estate.  It  is  the  case  of  mere  strangers  ;  it  is  a 
covenant  by  the  owner  of  a  messuage  and  land  with  the 
owner  of  a  neighboring  lime  work  and  railroad,  that  he  and 
his  executors  and  assigns  will  always  use  that  lime  work  and 
railroad  for  making  iron  at,  and  carrying  it  from  such  mes- 
suage." 

Sir  E.  Sugden,  who  was  one  of  the  counsel  in  favor  of 
the  injunction,  has  since  criticised  the  decision  in  his  work 
on  Vendors.  (See  page  740.)  The  Chancellor  held  that 
equity  should  not  enforce  performance  of  a  covenant,  by  an 
assignee,  which  did  not  run  with  the  land  at  law.  Sugden 
dissented  from  that  position,  but  from  no  other.  He  takes 
ground  that  the  case  is  analogous  to  a  purchase  by  one 
party,  with  notice  of  a  prior  agreement  by  his  vendor  to 
sell  the  premises  to  another. 

He  does  not  contend  that  the  covenants  run  with  the 
land.  The  Chancellor  had  denied  the  analogy,  and  gave  his 
reasons  for  it  as  follows  : 

"  A  case  like  this  bears  no  analogy  to  the  ordinary  case 
of  a  purchase,  with  notice  of  a  prior  agreement  by  the  ven- 
dor to  sell  the  premises  to  another.  Such  a  purchaser  had 
done  an  unconscientious  act,  or  at  least  made  himself  acces- 
sory to  the  unconscientious  act  of  his  vendor  in  selling 
another  man's  property,  and  therefore  his  bargain  cannot 
protect  him  against  the  prior  claim  ;  but  that  of  which  he 
there  had  notice,  was  the  legal  and  valid  act  of  the  vendor  ; 
whereas  that  of  which  the  assignees  here  had  notice,  was 


75 


their  assignor's  covenant  affecting  to  bind  the  land,  on  which, 
by  law,  it  could  not  operate." 

In  discussing  the  subject  upon  principle,  Lord  Brougham 
made  some  remarks,  which  our  Judges  may  find  it  profitable 
to  read,  before  attempting  to  override  all  the  rules  of  the 
past.  If  they  cannot  profit  by  it,  the  people  may.  It  may 
serve  to  remind,  that  without  law  there  is  no  property  ; 
and  without  conformity  to  established  rules  there  is  no  law. 
Judicial  decision,  when  contrary  to  the  rules  of  law,  and 
the  obvious  meaning  of  statutes  is  not  law,  but  despotism. 
Judicial  decision  taking  lands  from  the  party  who  con- 
fessedly has  indisputable  title,  and  giving  them  to  a  party 
who  as  confessedly  has  no  title  at  all,  as  has  been  done  in 
the  cases  under  review,  is  not  the  less  despotic  than  the 
edict  of  an  Emperor,  which  despoils  one  man  to  enrich 
another. 

Lord  Brougham  discriminated  between  law  and  the  mere 
caprices  and  prejudices,  of  power  as  follows.    He  said  : 

"  There  can  be  no  harm  in  allowing  the  fullest  latitude  to 
men  in  binding  themselves  and  their  representatives,  that  is, 
their  assets,  real 'and  personal,  to  answer  in  damages  for 
breach  of  their,  obligations,  This  tends  to  no  mischief,  and 
is  a  reasonable  liberty  to  bestow  ;  but  great  detriment 
would  arise,  and  much  confusion  of  rights,  if  parties  were 
allowed  to  invent  new  modes  of  holding  and  enjoying  real 
property,  and  to  impress  upon  their  lands  and  tenements 
a  peculiar  character,  which  should  follow  them  into  all  hands, 
however  remote.  Every  close,  every  messuage,  might  thus 
be  held  in  a  several  fashion  ;  and  it  would  hardly  be  possi- 
ble to  know  what  rights  the  acquisition  of  any  parcel  con- 
ferred, or  what  obligations  it  imposed.  The  right  of  way 
or  of  common,  is  of  a  public  as  well  as  of  a  simple  nature, 
and  no  one  who  sees  the  premises  can  be  ignorant  of  what 
all  the  vicinage  knows.  But  if  one  man  may  bind  his  mes- 
suage and  land  to  take  lime  from  a  particular  kiln,  another 
may  bind  him  to  take  coals  from  a  certain  pit,  while  a  third 


76 


may  load  his  property  with  further  obligtions  to  employ 
one  blacksmith's  forge,  or  the  members  of  one  corporate 
body,  in  various  operations  upon  the  premises,  besides  many 
other  restraints  as  infinite  in  variety  as  the  imagination  can 
conceive  ;  for  there  can  be  no  reason  whatever  in  support 
of  the  covenant  in  question,  which  would  not  extend  to  every 
covenant  that  can  be  devised. 

"The  difference  is  obviously  very  great  between  such  a 
case  as  this  and  the  case  of  covenants  in  a  lease,  whereby 
the  demised  premises  are  affected  with  certain  rights  in 
favor  of  the  lessor.  The  lessor  or  his  assignees  continue  in 
the  reversion  while  the  term  lasts.  The  estate  is  not  out  of 
them,  although  the  possession  is  in  the  lessee  or  his  assigns. 
It  is  not  all  inconsistent  with  the  nature  of  the  property 
that  certain  things  should  be  reserved  to  the  reversioner  all 
the  while  the  term  contiunes  ;  it  is  only  something  taken 
out  of  the  demise,  some  exception  to  the  temporary  sur- 
render of  the  enjoyment ;  it  is  only  that  they  retain,  more 
or  less  partially,  the  use  of  what  was  wholly  used  by  them 
before  the  demise  and  what  will  again  be  wholly  used  by 
them  when  that  demise  is  at  an  end." 

The  doctrine  of  that  case  is  expressed  in  terms  which 
admit  of  no  equivocation.  Only  the  owners  of  land  can 
control  it,  or  have  rent  for  the  use  of  it.  While  it  is  in  the 
possessions  of  others,  the  owners,  in  legal  phraseology,  are 
reversioners  The  property  is  in  them,  while  the  possession 
is  out.  Such  was  the  case  upon  grants  in  fee  at  common 
law.  It  is  otherwise  under  our  statues,  and  the  English 
statute  quia  emptores. 

Upon  this  distinction  Lord  Brougham,  in  Keppel  v.  Bailey, 
marked  the  boundary  which  could  not  be  passed.  He  de- 
clared it  utterly  inconsistent  with  the  laws  of  England,  that 
the  stranger  and  the  owner  of  land  should  be  admitted  to 
equal  control  in  directing  its  use,  or  in  the  receipt  of  its 
rents  and  profits.  Even  the  owner's  power  over  his  tenant, 
he  declared  limited  to  certain  covenants  and  conditions. 


77 


Certain  ones  he  might  impose  and  enforce,  but  unusual  and 
oppressive  ones,  he  could  not. 

Lord  Brougham  only  gave  Utterance  to  the  laws  of  Eng- 
land and  the  laws  of  all  nations,  who  have  advanced  far 
enough  from  barbarism  to  recognise  the  rights  of  individual 
property,  unless,  as  is  claimed  by  the  Judges  in  these  cases, 
this  State  is  an  exception  by  special  legislation.  These 
Judges  admit  Lord  Brougham  to  be  right  in  his  views  of  the 
laws  of  England.  They  admit  that  the  statute  quia  emp- 
tores  was  in  force  there,  and  that  a  grant  in  fee  from  a  mere 
subject  left  no  reversion  in  the  grantor.  They  concede  that 
here,  a  grant  in  fee  passes  the  estate  of  the  grantor,  leaving 
the  reversion  in  the  State  ;  but  at  the  same  time  they  insist 
that  it  has  been  so  modified  by  our  statutes,  as  to  place  the 
parties  thereto  in  the  same  relations  to  each  other,  in  regard 
to  covenants,  and  the  question  of  covenants  running  with 
the  land,  and  all  the  remedies  to  enforce  them,  as  did  a  grant 
in  fee  at  common  law.  They  solemnly  decide  that  so  far 
there  is  no  difference  between  our  laws  as  they  now  exist 
and  have  always  existed,  and  the  common  or  feudal  law. 
One  party  demands  another's  farm.  These  Judges  decide 
that  he  has  no  title  to  it ;  that  the  defendant  has  the  fee 
and  the  State  the  reversion.  But  nevertheless  the)7  deter- 
mine and  adjudge  that  the  plaintiff  shall  recover  the  farm. 
They  reason  in  this  way.  If  he  had  been  the  owner,  he 
could  recover.  Not  being  the  owner,  it  is  clear  he  must 
recover,  for  our  statutes  have  placed  those  who  own,  and 
those  who  do  not  own  lands,  "  upon  the  same  footing." 
Those  who  own  lands  are  to  have  no  advantages  over  those 
who  do  not.  "This  peculiarity  in  our  statutes  over  the  rest 
of  the  world,  they  have  just  discovered.  The  honor  of  first 
reducing  to  practice  they  hasten  to  acquire. 

The  party  who  proves  that  he  has  no  lands  and  no  estate 
in  lands,  as  the  plaintiffs  in  the  cases  under  review  have 
done,  furnishes  to  thesp  Judges  the  strongest  possible  reasons 
why  he  should  recover.    Claiming  to  be  lords  of  the  manor, 


78 


as  all  the  plaintiffs  do,  Judges  Harris,  Wright  and  Gould 
find  another  very  clear  point  in  their  favor.    Our  statutes, 
say  they,  recognize  manorial  tenures.    That  is,  they  forbid 
them  and  legislate  against  them*  and  therefore  recognize 
them.    Unless  this  manor  existed,  what  could  be  the  mean- 
ing of  such  legislation  ?    Rather  than  have  the  statutes 
useless,  as  the  Revisers  made  out  they  were,  these  Judges 
have  endeavored  to  satisfy  themselves  of  the  correctness  of 
the  manorial  assumption,  and  they  have  succeeded.  They 
have  therefore  reconstructed  a  manor  upon  a  system  of  their 
own,  and  announced  to  the  land-owners  that  they  must  sub- 
mit to  it,  must  swear  fealty  and  render  service,  or  be  driven 
from  their  homes  and  the  homes  of  their  fathers  to  make 
room  for  more  loyal  subjects.    By  their  new  invention  of 
legal  estates  and  legal  phraseology,  they  claim  the  proud  title 
of  saviors  of  the  manor  and  its  manifold  lords  from  the  de- 
structive effects  of  the  Court  of  Appeals  in  the  De  Peyster 
case. 

The  reader  has  already  seen  how  important  a  part  these 
J udges  have  made  the  terms  landlord  and  tenant  play  in  their 
efforts  at  deceiving  themselves  and  deceiving  others.  He 
can  judge  for  himself  with  what  propriety  these  terms 
have  been  used.  The  object  of  the  use  is  clear.  The  parties 
have  been  called  landlord  and  tenant  in  order  to  apply  the 
obligations  of  those  relations.  They  might  with  as  much 
propriety,  have  been  called  parent  and  child,  and  thus  forced 
upon  the  one  the  burden  of  supporting  the  other. 

Such  an  application  of  terms  would  have  been  no  more 
forced,  and  no  less  absurd,  than  the  one  they  have  made. 
These  Judges  admit  the  common  law  relations  of  landlord 
and  tenant  not  to  exist.  But  they  insist  that  our  statutes 
have  innovated  upon  the  common  law,  and  have  created  a 
monstrosity  of  that  character  without  ownership  of  lands 
in  the  one,  or  subordinate  tenancy  in  the  other  ;  and  that 
this  unnatural  creation  is  subject  to  all  the  rigid  rules  of 
fealty  and  service,  and  of  forfeiture,  which  characterise  the 
feudal  or  common  law  relations. 


Number  IX. 


The  misunderstanding  and  misuse  of  the  word  rent  —  Authorities  showing 
that  the  word  rent  has  a  fixed  meaning  and  cannot  he  created  by  the  mere 
agreement  of  the  parties  —  Hope  vs.  Booth,  1  Barn.  &  Adolph.,  49;  S. 
C.  20  Eng.  Com.  Law  Rep.,  574;  Parmenter  vs.  Webber,  8  Taunt.,  593  ; 
Sackett  and  Reed  vs.  Barnum,  22  Wen.,  605  ;  Evertson  vs.  Sutton,  5 
Wen.,  281 ;  Roach  vs.  Cosine,  9  Wen.  227  ;  Sims  vs.  Humphrey.  4  Denio, 
185;  Cornell  vs.  Lamb,  2  Cow.,  652;  Burton  on  Real  Property,  §1102; 
Piatt  on  Covenants,  65  ;  Rawle  on  Covenants,  for  Title,  341,  2d  ed.  — 
Specimens  of  judicial  logic  in  the  cases  under  review. 

Before  the  reader  will,  perhaps,  be  ready  fully  to  appre- 
ciate the  new  statutory  construction  inaugurated  by  Judges 
Harris,  Wright  and  G-ould,  there  is  yet  another  word  misap- 
plied by  them,  'which  should  be  understood.  The  word 
rent  is  made  the  foundation  of  their  construction,  if  it  can 
be  said  to  have  any  foundation.  It  is  assumed  that  when 
parties  make  contracts  and  any  sum  to  be  paid,  or  service 
to  be  rendered,  is  called  rent,  it  is  legally  and  technically 
rent  according  to  the  common  law  meaning.  The  word 
rent  occurring  in  a  deed  or  writing,  the  reasoning  is,  hence 
the  relation  of  lord  and  tenant.  The  theory  lying  at  the 
foundation  of  the  whole  argument,  the  majority  as  well  as 
the  minority  opinion,  begins  and  ends  with  this  proposi- 
tion ;  that  when  a  deed  of  lands  has  in  form  and  in  words 
rent  reserved  and  a  covenant  to  pay,  no  matter  what  the 
character  of  the  deed,  or  whether  or  not  the  covenantee 
has  the  reversion,  or  any  estate  in  the  land  conveyed,  the 
deed  itself  becomes  a  lease  by  the  operation  of  our  statutes 
and  the  parties  thereto,  landlord  and  tenant ;  and  this  re- 
lation continues  between  their  respective  assignees,  during 


80 


the  time  limited,  unless  sooner  ended  by  forfeiture  on  the 
part  of  the  tenant. 

There  is  no  pretence  that  the  statute  has  defined  the  word 
rent  or  given  to  it  a  definition  different  from  the  common 
law  meaning.  And  according  to  the  usages  of  the  past, 
there  is  no  authority  or  precedent  for  the  theory.  There 
are  numerous  authorities  to  the  contrary  in  addition  to  those 
before  cited. 

Hope  v.  Booth,  1  Barn.  &  Adolph.  49.  S.  C.  20  Eng.  Com. 
Law.  Rep  574,  presents  a  case  where  the  parties  undertook 
by  agreement  to  construe  differently  from  the  rules  of  law. 
There  was  a  contract  by  deed  to  sell  and  convey  certain 
premises  on  payment  of  £900.  The  purchaser  was  to  pay 
on  the  vendor  tendering  the  deed,  or,  if  he  chose,  to  execute 
a  conveyance  for  securing  the  sum  of  £900  on  the  premises. 
There  was  this  proviso,  that  in  case  the  interest  should  be 
in  arrear  thirty  days  next  after  due,  the  vendee  "  should  be 
considered  as  a  tenant  of  the  said  lands  to  the  vendor  from 
the  date  thereof,  at  tho  yearly  rent  of  £40  10s.  payable  on 
the  16th  of  April  and  16th  of  October  in  every  year ;  and 
it  should  be  lawful  for  A,  his  heirs  and  assigns  to  enter  and 
distrain,  and  to  sell  and  dispose  of  the  distress,  or  otherwise 
deal  with  the  same,  in  like  manner  as  in  distresses  for  rent 
reserved  by  lease."  The  vendee  was  let  into  possession; 
one-half  year's  interest  became  due  and  was  collected  by 
distress.  Another  became  due,  and  an  action  of  covenant 
was  brought.  The  vendee  had  become  bankrupt,  and  plead 
bankruptc}?-.  The  right  to  recover  depended  upon  whether 
the  agreement  was  to  be  construed  as  a  lease  or  a  sale. 

Lord  Tenterden,  C.  J.  said,  "  I  am  of  opinion  that  the  in- 
strument on  which  this  action  was  brought  was  not  origin- 
ally a  lease,  and  that  it  did  not  become  a  lease  by  reason  of 
the  interest  being  in  arrear,  and  one  of  the  parties  having 
distrained  upon  the  other  in  pursuance  of  the  power  given 
to  him  by  the  deed."    All  the  Judges  concurred. 

Parmenter  vs.  Webber  8  Taunt.  593,  was  a  similar  case. 
It  was  a  part  of  the  agreement  that  the  relation  of  landlord 


81 


and  tenant  was  thereby  created.  There  was  a  covenant  in 
form  for  rent,  but  it  was  held  not  to  be  rent  because  the 
covenantee  had  no  reversion  in  the  premises.  The  Court 
did  not  perceive  that  the  covenant  itself  was  enough.  The 
doctrine  of  "  entities  "  was  not  discovered.  Or,  perhaps 
our  judges  would  say,  the  Statutes  of  England  were  differ- 
ent. 

Let  us  now  commend  their  attention  to  a  decision  which 
will  not  admit  of  that  answer. 

Sackett  &  Reed  vs.  Barnum,  22  Wen.,  605  was  a  similar 
case.  In  1839  R.  A.  and  W.  Weed  made  a  sealed  agree- 
ment with  Barnum,  whereby  they  covenanted  to  execute 
to  him  a  deed  of  coveyance  of  a  farm.  Barnum  covenant- 
ed to  pay  them  therefor  $1635 ;  $235  on  the  15th  of  July 
then  instant,  and  $1400  in  fourteen  equal  annual  payments. 
It  was  mutually  agreed  that  Barnum  should  take  immediate 
possession  of  the  premises  as  tenant  to  the  Weeds ;  and 
there  were  further  provisions  in  the  following  language  : 
"  And  in  consideration  whereof,  and  in  order  the  better  to 
secure  the  payments  on  the  contract,  it  is  admitted  and 
agreed  that  the  relation  of  landlord  and  tenant  shall  and  does 
henceforth  exist  between  the  parties,  to  all  intents  and  pur- 
poses, and  that  the  parties  of  the  first  part  many  collect 
and  recover  all  moneys  becoming  or  to  become  due  on  this 
contract  of  and  from  the  party  of  the  second  part,  by  dis- 
tress or  otherwise  ;  as  for  so  much  rent  due."  And  in  case 
of  non-payment,  the  Weeds  might  "  consider  and  treat  him 
as  a  tenant  holding  over  without  permission  after  non-pay- 
ment of  the  rent." 

Barnum's  property  was  levied  upon  by  an  execution  in 
favor  of  Sackett  and  Reed.  The  Weeds,  upon  their  affida- 
vits, claimed  to  be  paid  as  landlords  of  demised  premises. 
The  Sheriff  refused  to  pay  over  on  the  execution,  and  a 
motion  to  compel  him  to  do  so  was  made  and  granted. 

Here  was  a  case  where  the  parties  had  not  only  agreed 
that  certain  sums  to  be  paid  should  be  rent,  but  had  also 
11 


82 


expressly  agreed  that  the  relation  of  landlord  and  tenant 
existed  "  to  all  intents  and  purposes,"  and  that  the  parties 
called  landlords  might  recover  "  by  distress  or  otherwise, 
as  for  so  much  rent  due." 

The  party  demanding  rent  had  in  his  favor  a  statute  as 
follows  : 

<c  If  an  execution  be  levied  upon  any  goods  or  chattels, 
in  or  upon  any  demised  premises  liable  to  distress  for  rent, 
the  landlord  of  such  premises  to  whom  any  rent  of  such 
premises,  may  be  due,  may  at  any  time  before  a  sale  of 
such  goods  by  virtue  of  such  execution,  give  notice  to  the 
party  in  whose  favor  such  execution  shall  be  issued,  or  to 
the  officer  holding  the  same,  of  the  amount  claimed  by 
such  landlord  to  be  due,  and  the  time  during  which  the 
same  accrued,  and  shall  accompany  such  notice  with  his 
own  affidavit,  or  that  of  his  agent,  of  the  truth  thereof.' 
(1R.  S.,  767,  §  12.) 

Bronson,  J.,  delivered  the  opinion.    He  said  : 

"  The  several  payments  which  the  vendee  was  to  make 
were  not  a  rent  or  return  for  the  temporary  enjoyment  of 
the  land — they  were  not  reserved  out  of  the  annual  profits  by 
way  of  recompense  or  retribution  for  the  possession  of  the  pro- 
perty, but  they  icere  a  part  of  the  consideration  for  the  sale — 
the  price  of  the  land  itself,  with  the  addition  of  interest, 
because  the  payments  were  postponed  to  future  periods. 
On  default  of  payment,  the  parties  have  stipulated  for  a 
remedy  by  distress,  as  for  so  much  rent  due.  Whatever 
may  be  the  legal  effect  of  this  agreement,  as  between  the 
parties  to  it,  I  think  they  could  not,  as  against  third  per- 
sons, turn  the  price  of  the  land  itself  into  rent,  and  thus 
acquire  a  preference  over  the  execution  creditors  of  the 
vendee.  The  goods  were  not  upon  demised  premises,  and 
there  was  no  rent  due,  within  the  meaning  of  the  Statute." 

The  books  abound  with  cases  where  it  has  been  held  that 
to  constitute  rent,  there  must  be  something  more  than  words; 
that  the  law  regards  the  substance  and  not  the  name  which 


83 


parties  may  agree  upon.  Evertson  vs.  Sutton,  5  Wen.  281; 
Roach  vs.  Cosine,  9  Wen,  227  ;  Sims  vs.  Humphrey,  4  Denio 
185  ;  Cornell  vs.  Lamb,  2  Cow,  652. 

In  the  case  last  named,  it  was  agreed  by  counsel  upon  both 
sides,  that  the  word  rent  when  occurring  in  our  Statutes 
means  rent-service  as  known  to  the  common  law  ;  and  that 
there  were  no  statutory  provisions  in  regard  to  any  other 
rent  The  counsel  were  S.  G.  Huntington  and  Esek  Cowen. 
They  had  not  discovered  the  change  wrought  by  our  Sta- 
tutes ;  and  the  Court  seem  to  have  been  as  ignorant  of  the 
innovations  as  were  the  counsel. 

As  heretofore  noticed,  it  was  there  held  that  rent  cannot 
exist,  except  as  an  incident  of  the  reversion. 

The  elementary  writers  concur  in  the  same  rule.  They 
all  agree  that  there  must  be  a  reversion  in  the  covenantee 
at  the  time  of  the  making  the  covenants ;  that  rent  can  run 
with  the  land  only  as  an  incident  of  the  reversion.  The 
idea  that  a  covenant  may  of  itself  be  both  principal  and 
incident,  seems  never  to  have  been  deemed  worthy  of  no- 
tice, except  by  Wilde,  J.,  in  Hurd  vs.  Curtis,  before  cited, 
and  by  him  onfy  to  be  denounced ;  while  it  has  always 
been  denied  that  a  party  can  sell  his  lands  and  make  the 
sale  price  rent  by  agreement.  The  cases  under  review  are 
the  first  of  their  order,  professedly  put  forth  as  the  begin- 
ning of  a  revolution,  which,  it  is  expected  by  the  new  Manor 
claimants,  the  Court  of  Appeals  can  be  induced  to  sanc- 
tion. 

For  the  elementary  authorities  referred  to,  see  Burton  on 
Real  Property,  §  1102  ;  Piatt  on  Covenants,  p.  65,  and 
Rawle  on  Covenants  for  title,  p.  341,  2d  ed. 

The  last  named  is  an  American  work  of  recent  date,  of 
great  research  and  ability,  but  still  adheres  to  the  foreign 
doctrines  which  are  denounced  by  Judge  Gould  as  adverse 
to  pure  morality  and  sound  equity.  Upon  this  subject,  its 
author  says : 

"  When  the  statute  of  quia  emptores  abolished  subinfeuda- 
tion, privity  of  tenure  and  estate  no  longer  existed  upon 


84 


conveyances  which  passed  the  fee  and  left  no  reversion  in 
the  donor ;  and  it  became  a  rule  that  covenants  which  im- 
posed any  charge,  burden  or  obligation  upon  the  land  were 
held  not  to  be  incident  to  it ;  thus  if  the  owner  of  land 
granted  it  in  fee,  reserving  to  himself  a  rent,  which  the 
grantee  covenanted  to  pay,  here  though  the  covenant  was 
to  be  performed  out  of  the  land,  yet  the  assignee  of  the 
covenantor  would  hold  the  land  discharged  of  its  liability." 

The  same  view  is  taken  in  notes  to  Spencer's  case,  1 
Smith's  leading  cases,  p.  22  et  sequilur.  The  question  is 
there  elaborately  discussed  in  both  the  English  and  Amer- 
ican notes 

From  all  these  authorities  the  reader  will  learn  that  the 
relations  of  landlord  and  tenant,  and  rent,  are  to  be  deter- 
mined by  the  estates  held  by  the  respective  parties,  and 
not  at  all  by  the  name  and  construction  agreed  upon  be- 
tween them.  Especially  is  that  tiue  when  the  rights  of 
third  parties  are  involved.  It  was  never  held  to  the  con- 
trary ;  and  no  attempt  of  the  kind  has  ever  been  made, 
except  the  Irish  cases  cited  in  a  preceding  number,  until 
the  Supreme  Court  of  the  3d  Judicial  District,  by  Judges 
Harris,  Wright  and  Gould  without  the  aid  or  suggestion 
of  counsel  on  either  side  and  without  argument  undertook 
to  reconstruct  the  manor  system  from  the  scattered  frag- 
ments left  from  the  decision  of  the  De  Peyster  case. 

The  reader  has  become  somewhat  familiar  by  this  time, 
with  the  material  from  which  such  structures  have  been 
usually  made,  as  well  as  with  the  manner  of  putting  them 
together.  To  give  him  such  information,  the  approach  has 
been  necessarily  gradual,  and  with  many  stoppings  by  the 
way.  We  trust  to  be  pardoned  for  both.  The  subject  is 
one  belonging  to  the  old  world  and  not  to  the  new.  And 
even  there,  it  belongs  more  to  past  centuries  than  to  the 
present.  The  system  of  burdens  proposed  to  be  fastened 
upon  the  lands  ot  this  State,  are  of  so  barbarous  a  character 
as  to  have  been  discarded  and  cast  off  in  England  centuries 


85 


since.  The  very  Judges  who  propose  to  be  the  leading  in- 
struments in  this  retrogression  to  barbarism  and  to  barbaric 
despotism,  admit  that  fact  and  denounce  the  English  legis- 
lation and  the  English  jurisprudence  which  have  discarded 
it.  They  charge  it  to  be  against  "  pure  morals,"  and 
"  sound  law,"  and  therefore  proclaim  the  adjudications  of 
the  past  to  be  unrighteous,  and  propose  to  pervert  our  own 
similar  legislation  into  authority  to  fasten  upon  the  lands 
of  the  State  the  very  burdens  which  they  were  designed  to 
prevent.  The  deliberate  adjudication  of  the  Court  of  Ap- 
peals, unanimously  and  recently  made,  they  declare  unad- 
vised, and  denounce  it  as  the  result  of  undue  respect  to 
foreign  decisions,  and  therefore  not  to  be  followed. 

The  leading  argument  by  Judge  Gould,  is  distracted. 
By  that  we  do  not  refer  particularly  to  the  style  of  com- 
position. This  review  is  limited  to  its  logic  and  its  law. 
The  subordinate  opinion  is  an  epitome  of  the  first,  with 
unmistakable  signs  of  straining  to  keep  in  its  footsteps. 

For  an  example  of  the  logic,  take  the  following  : 

"  Nothing  bu^  the  somewhat  peculiar  nature  of  this 
litigation  could  justify  going  into  such  details,  on  such  a 
point,  as,  for  an  ordinary  purpose,  the  first  maxim  of  all 
construction  would  suffice,  viz :  that  words  are  to  be 
taken  in  their  most  usual  and  popular  sense,  until  some 
cause  be  shown  to  the  contrary.  And  no  one  will  pretend 
that  in  the  usual  and  popular  sense,  there  is  any  doubt  that 
any  lessor  is  a  landlord,  or  any  lessee  a  tenant ;  or  that 
rent  is  paid  by  a  tenant  and  received  by  a  landlord." 

This  reasoning  of  Mr.  Justice  Gould  has  one  serious 
fault,  beyond  the  skill  of  its  author  to  remedy.  The 
assumption  upon  which  it  is  founded  is  a  naked  fabrica- 
tion. The  words  lessor  and  lessee  do  not  occur  in  the 
deeds  whereupon  the  actions  are  founded,  nor  does  the 
word  lease.  Words  of  sale  and  alienation,  and  not  of  leas- 
ing, are  used.  The  operative  words  of  the  conveyance, 
are  "  hath  granted,  bargained,  sold,  remised,  released,  and 


86 


confirmed,  and  by  these  presents  doth  grant,  bargain,  sell, 
remise,  release  and  confirm."  The  habendum  clause  is  to 
the  grantee,  and  his  heirs  and  assigns  to  have  and  to  hold 
forever.  If  those  who  own  lands  in  fee  will  take  the 
trouble  to  examine  their  deeds,  they  will  find  just  such 
language  of  conveyance,  and,  in  no  case,  more  unequivocal 
words  of  vendition. 

It  does  not  mitigate  the  character  of  the  assumption  on 
the  part  of  Judge  Gould,  that  his  official  associates  have 
joined  with  him  in  its  adoption.  It  is  none  the  less  ficti- 
tious, and  as  a  fiction  is  none  the  less  reckless.  It  is  true 
the  majority  opinion  has  even  improved  upon  his  assump- 
tion. 

It  abounds  in  iterations  of  "  manor  leases  "  and  "  fee 
farm  leases."  The  true  character  of  these  interpolations 
cannot  be  understood  without  bearing  in  mind  that  they 
constitute  the  whole  material  of  argument  of  the  three 
Judges. 

The  reasoning  of  the  leading  opinion  in  the  specimen 
quoted  lacks  logical  verity,  as  well  as  the  verity  of  facts. 
Its  author  assumes  the  only  point  in  dispute  between 
opposing  counsel,  and  thus  in  technical  language  begs  the 
question.  It  is  like  making  one  party  indebted  to  another 
by  merely  calling  the  one  the  creditor  and  the  other  the 
debtor,  and  therefore,  "  in  the  usual  and  popular  sense  " 
as  his  reasoning  goes,  the  one  must  owe  the  other. 

For  an  example  of  the  assumption  and  the  legal  sequen- 
ces, take  the  following  from  the  opinion  of  Judge  Gould  : 

"  But  our  statutes  will  sufficiently  explain  this  point  also  ; 
and  that  in  the  very  statute  that  gives  ejectment  for  non- 
payment of  rent,  (2  Revised  Statutes,  1st  ed.,  505  ;  4th  ed., 
750.)  In  the  first  place  the  title  of  the  act ;  "  of  the  re- 
covery of  possession  of  demised  premises  for  non-payment 
of  rent  by  ejectment."  It  has  no  qualification,  as  to  being 
a  landlord's  remedy ;  thus  conceding  that  he  who  is  en- 
titled to  the  rent,  is  entitled  to  the  remedy.    In  its  first 


87 


section  (§  30)  the  condition  on  which  ejectment  may  be 
brought,  is,  if  the  landlord  has  a  subsisting  right  by  law 
to  re-enter  for  the  non-payment  of  such  rent?  And  has 
not  the  defendant's  whole  argument  proceeded  on  the  basis 
that  no  one  but  the  landlord  can  have  that  right.  And  is 
that  not  one  of  the  rights  expressly  reserved  in  a  lease  which 
the  statute  says  is  good  ;  (of  course,  making  good  all  law- 
ful conditions  therein).  And,  further,  the  Statute  has 
made  this  very  right  of  entry,  in  such  a  case  assignable 
with  its  remedies.  (§  23,  25,  as  above  cited.)  These  two 
sections  positively  give  this  remedy,  by  entry  (and  entry 
and  re-entry  are  all  one  ;  Littleton,  §  347,)  to  the  assignees 
of  lessors  in  fee,  as  their  lessor  had  it,  (by  tenor  of  his 
lease,)  thus  making  the  lessor  a  landlord." 

Upon  the  same  point,  Judge  Wright  quotes  the  §30  of 
the  same  statute  ;  and  then  remarks  :  "  This  statute  only 
applied  to  cases  where  the  conventional  relation  of  land- 
lord and  tenant  existed.  That  relation  has  always  been 
assumed  by  the  Courts  to  exist,  under  and  by  virtue  of  the 
manor  grants  in#fee  reserving  rents  ;  and  I  have  endeavored 
to  satisfy  myself  that  that  assumption  was  luell  founded" 

The  point  referred  to,  belonged  more  particularly  to  the 
ejectment  cases.  The  plaintiffs  could  not  recover  without 
first  showing  the  legal  title  to  the  premises.  They  most  be 
the  owners  to  have  any  right  to  the  possession.  The  Court 
of  Appeals,  in  the  De  Peyster  case,  had  decided  that  the 
plaintiffs  had  no  estate  and  could  not  therefore  recover.  It 
was  the  chief  point  in  the  several  cases  decided  by  the 
Court  of  Appeals,  and  so  made  by  counsel  upon  both  sides. 

In  the  above  quotations,  the  reader  has  the  whole  argu- 
ment of  the  Court  upon  this  point  in  the  cases  under  re- 
view. The  deeds  are  assumed  to  be  leases,  the  parties 
lessor  and  lessee,  and  therefore  landlord  and  tenant  And 
the  Judges  have  the  boldness  to  assert  that  that  relation 
had  always  been  assumed  by  the  Courts  to  exist,  when  the 
Court  of  last  resort  in  the  State  had  recently  decided 


88 


otherwise,  thereby  affirming  the  decision  of  the  Supreme 
Court  to  the  same  effect ;  and  when  they  can  point  to  no 
decision  wherein  the  contrary  has  been  held. 

Such  are  the  assumptions  and  such  the  character  of  the 
judicial  reasoning,  whereby  the  land-owners  of  Albany  and 
Rensselaer  counties  are  to  be  driven  from  their  homes  and 
the  homes  of  their  fathers,  to  make  room  for  a  party  who 
claims  to  have  acquired,  in  the  way  of  speculation  the 
hereditary  pretensions  to  the  manor  of  Rensselaerwick, 
after  those  pretensions  have  been  determined  to  be  worth- 
less by  the  highest  judicial  tribunal  of  the  State. 


Number  X. 


The  peculiar  assumptions  and  the  manner  in  which  they  are  made  —  The 
Judges  omit  to  notice  the  point  in  dispute  between  counsel ;  and  discuss 
others  about  which  counsel  did  not  differ  —  A  rent  charge  —  Discovery  by 
Judge  Gould  of  two  kinds  of  rent  charge  —  His  idea  of  the  Statute  quia 
emptores  erroneous  —  He  discovers  Littleton  to  be  overthrown  by  Coke's 
note  —  He  discovers  that  Coke  further  overthrows  the  rule  laid  down  by 
Littleton  —  His  mistake  —  He  failed  to  understand  the  note  —  His  notion 
of  covenants  implied  by  the  words  "  yielding  and  paying,"  and  his  rebuke 
of  the  Court  of  Appeals  for  differing  from  him  —  He  agrees  that  the 
actions  could  not  be  maintained  according  to  the  English  decisions  —  He 
confounds  a  rent- charge  with  a  rent-service  —  Definition  of  a  lease,  of  a 
lessor  and  a  lessee. 

There  are  ma»y  remarkable  features  about  the  opinions 
under  review.  Not  the  least  among  them  is  this :  While 
counsel  differ  only  about  one  point,  whether  the  relation 
of  landlord  and  tenant  subsists  between  the  parties,  as 
hereinbefore  stated,  the  court  are  careful  to  keep  that  point 
out  of  sight.  The  Judges  conventionally  assume  it  in 
favor  of  the  plaintiffs,  in  a  manner  calculated  to  leave  the 
impression  that  the  parties  and  their  counsel  agree  upon 
it,  and  that  they  differ  only  about  the  rules  of  that  rela- 
tionship. The  Judges  cite  authorities  to  prove  doctrines 
that  were  not  questioned,  and  discuss  points  about  which 
opposing  counsel  did  not  differ.  In  that  way  their  opinions 
have  an  air  of  learning  and  research,  as  though  to  settle 
the  conflicts  of  counsel.  The  leading  opinion  is  introduced 
with  the  following  prelude :  "  There  seems  to  be  a  neces- 
sity for — certainly  a  propriety  in — going  more  at  length 
into  the  discussion  of  those  reasons,  and  of  some,  at  least, 
12 


90 


of  those  authorities,  than  accords  with  either  my  wishes  or 
my  practice." 

This  announcement  would  excite  a  smile,  were  it  not 
for  the  associated  ideas  that  it  comes  from  a  source  where 
temporarily  rests,  the  exercise  of  certain  judicial  powers 
over  the  property,  the  liberties,  and  even  the  lives  of  men  ; 
and  that  its  immediate  and  direct  effect  was  to  support 
judicial  action  designed  to  take  from  parties  property  con- 
fessedly their  own,  according  to  the  settled  laws  of  the 
State. 

The  introduction  being  made,  the  deeds  in  question  upon 
which  the  actions  are  founded,  are  assumed  to  be  leases, 
and  the  parties  thereto  lessor  and  lessees,  while  the  true 
and  only  point  was  whether  that  was  or  was  not  the  char- 
acter of  the  deeds  and  of  the  relations  of  the  parties  con- 
nected with  them. 

The  leading  opinion  discourses  of  a  rent  charge,  but  only 
to  relieve  the  author  about  his  mistakes  upon  that  subject 
in  his  Main  and  Feathers  opinion.  He  now  asserts  the 
discovery  of  a  new  truth,  that  Littleton  defines  two  kinds 
of  that  sort  of  rent  heretofore  overlooked  by  lawyers  and 
judges.  To  the  want  of  that  discovery,  he  attributes  the 
rule,  so  long  established,  that  a  rent  charge  does  not  run 
with  the  land.  This  evinces  that  the  discovery  has  been 
made  since  he  decided  Main  v.  Feathers.  He  then  sup- 
posed that  a  rent  charge  run  with  the  land  and  there- 
fore held  the  rent  in  that  case  to  be  a  rent  charge.  He 
declares  it  to  be  essential  to  bear  in  mind  the  two  kinds  of 
rent  charge  which  he  has  discovered  that  Littleton  made, 
in  order  to  appreciate  his  reasons.  But  he  neither  tells  us 
what  those  two  kinds  of  rent  charges  are,  nor  what  may 
be  the  difference  between  them.  And,  as  he  has  not  given 
the  page  or  section  of  Littleton  where  the  discovery  can  be 
found,  we  must  remain  as  ignorant  since  as  before. 

Judge  Gould  speaks  of  the  rule  previous  to  the  statute 
quia  emptores  whereby  rents  could  be  reserved  upon  grants 


91 


in  fee  as  well  as  for  life  or  years.  He  then  uses  this  lan- 
guage :  "  But  by  force  of  the  statute  of  "  quia  emptores  ter- 
rarum',it  behooved  any  man  who  would  reserve  to  himself 
a  rent  service,  that  the  reversion  be  to  himself."  Here  he 
falls  into  an  error,  which  may  have  exercised  an  important 
influence  over  his  decision.  He  supposed  the  statute  quia 
emptores  changed  the  common  law  by  making  a  reversion 
necessary  to  the  existence  of  rent,  and  that  such  was  the 
purpose  of  that  statute.  He  utterly  misapprehends  the 
Statute.  The  rule  which  he  alleges  was  established  by  the 
force  of  that  act,  was  a  common  law  rule  as  old  as  the  com- 
mon law  itself.  Section  215  of  Littleton  gives  it  as  fol- 
lows :  "  Where  a  man  upon  such  a  gift  or  lease  will  reserve 
to  him  rent  service,  it  behooveth  that  the  reversion  of  the 
lands  and  tenements  be  in  the  donor  or  lessor."  The 
reference,  "  such  a  gift  or  lease,"  was  made  to  the  preced- 
ing section  which  treats  of  leases  for  life  or  years.  The 
statute  quia  emptores  was  founded,  as  before  noticed,  upon 
the  pre-existing  rule  requiring  a  reversion  to  support  rent, 
and  was  not  th^  means  of  establishing  that  rule.  Thus  by 
making  a  deed  in  fee  an  assignment,  and  not  a  lease  of  the 
grantor's  estate,  it  left  him  with  no  reversion,  and  conse- 
quently without  the  power  to  attach  covenants  or  condi- 
tions of  any  kind.  Hence,  when  it  was  declared  by  Little- 
ton, that  if  a  man  will  make  a  feoffment  in  fee,  reserving 
to  him  a  certain  rent,  the  reservation  is  void ;  and  when 
in  the  next  section  he  declares  that  effect  to  have  been 
produced  by  force  of  the  statute  quia  emptores,  he  means 
that  that  statute  has  caused  a  deed  in  fee  to  leave  no  re- 
version in  the  donor  or  grantor,  and  not  that  it  has  changed 
the  law  so  as  to  require  a  reversion.  It  was  always  neces- 
sary to  a  lease  that  the  grantor  or  lessor  should  have  the 
reversion.  The  statute  took  the  reversion  from  a  deed  in 
fee,  thereby  depriving  it  of  the  character  of  a  lease.  It 
changed  it  from  the  letting  of  lands  to  a  sale ;  from  subin- 
feudation to  alienation. 


92 


By  the  same  principle,  as  heretofore  shown,  if  a  lessee 
for  a  term  of  years  lets  the  premises  for  the  same  time, 
though  reserving  a  rent  to  himself,  it  is  an  assignment  and 
not  a  lease.  His  rents  may  be  good  as  personal  obligations, 
against  the  party  covenanting  or  promising,  but  are  not 
attached  to  the  lands  so  as  to  run  therewith.  See  Prescott 
vs.  De  Forest,  16  John.,  159. 

In  this  connection  Judge  Gould  makes  another  discovery, 
which  he  charges  the  world  to  have  overlooked.  He  says 
that  Coke  in  a  note  to  Littleton,  section  215,  has  over- 
thrown the  text,  and  declared  the  reversion  immaterial ; 
that  rent  can  be  separated  from  it.  He  charges  the  Eng- 
lish Courts  with  ignorance  in  deciding  to  the  contrary, 
"  taking  no  note  of  this  rule  of  Coke's." 

The  note  has  never  before  been  supposed  to  conflict  with 
the  text.  All  that  was  meant  by  the  rent  not  being  insepa- 
rably connected  with  the  reversion  was  this,  as  Judge 
Gould  will  understand  by  a  little  study,  that  rent  which  had 
become  due  was  a  mere  chose  in  action  which  could  survive 
the  reversion  and  be  assigned  independently  of  it.  The 
case  in  Carthew's  Reports,  page  289,  which  has  struck 
Judge  Gould  as  a  new  discovery,  is  one  of  that  kind. 
There  an  action  was  brought  for  rent  which  had  accrued 
before  the  reversion  was  granted  over,  but  the  action  was 
not  commenced  until  after.  This  is  a  doctrine  familiar 
to  every  lawyer.  If  a  party  leases  his  premises,  and, 
after  the  rent  has  accrued,  sells  and  transfers  them,  the 
rents  already  due  do  not  pass  with  the  conveyance.  Here 
is  no  principle  of  importance  to  the  cases  under  discussion, 
or  which  has  even  a  remote  bearing.  The  authorities  all 
agree  that  the  party  who  claims  the  rent  must  show  that  a 
reversion  existed  at  the  time  the  rent  became  due,  and  that 
it  accrued  to  the  owner  of  the  reversion. 

Another  discovery  is  made  by  Judge  Gould  in  a  note  of 
Coke  to  section  217  of  Littleton.  He  quotes,  "  It  is  a  maxim 
in  law,  that  the  rent  must  be  reserved  to  him  from  whom 


93 


the  estate  in  the  land  moveth,  and  not  to  a  stranger." 
Judge  Gould's  understanding  of  that  remark  seems  to  be 
that  Lord  Coke  there  also  denies  the  doctrine  of  the  text, 
and  declares  that  rent  can  always  be  reserved  to  the 
grantor.  Here  again  he  misapprehends,  and  again  is  mis- 
taken. Coke  was  giving  the  reason  why  rent  could  not  be 
reserved  to  a  grantor  in  fee  under  the  Statute.  The  land 
did  not  move  from  the  grantor  but  from  the  chief  lord. 
Here  the  title  comes  from  the  State,  which  is  our  chief 
lord.  The  absolute,  ultimate  right  of  property  rests  there, 
and  from  that  source  every  fee  moveth.  It  only  comes 
through  the  grantor  and  not  from  him.  In  the  cases  under 
review  the  owners  of  the  land  do  not  derive  their  title 
from  Yan  Rensselaer,  but  only  through  him  as  a  medium. 
He  owned  a  fee,  moved  or  created  by  the  State,  and  stepped 
out,  and  the  present  owners  have  stepped  in.  For  these 
reasons  rent  could  not  be  reserved  to  him,  because  the  land 
did  not  move  from  him,  but  from  the  State.  He  is  a 
stranger.    Such  is  the  doctrine  of  Lord  Coke. 

There  was  another  point  in  the  opinion  of  Main  v. 
Feathers  about  which  its  author  is  sensitive.  He  had  held 
that  though  the  express  covenant  might  not  run  with  the 
land,  the  words  "  yielding  and  paying"  implied  a  condition 
which  did.  No  such  question  having  been  raised  or  dis- 
cussed by  counsel,  he  overlooked  the  authorities  holding 
that  such  words  do  not  imply  a  condition.  Among  the 
numerous  cases  was  Tallman  v.  Coffin,  4  Comstock,  138. 
This  could  not  be  disposed  of  by  denouncing  it  as  a  foreign 
decision.  Judge  Gould  therefore  tells  the  Court  of  Appeals 
that  its  decision  is  no  authority.  He  declares  it  erroneous 
in  two  particulars.  First :  That  the  Court  was  wrong  in 
the  decision  of  the  point  itself.  Second  :  There  was  no 
such  point  in  the  case.  He  concludes  his  criticism  in  the 
following  language  : 

"  Yet  I  cannot  but  think  that  the  result  of  that  case 
would  have  appeard  more  just,  and  would  have  been  more 


94 


satisfactory  even  to  the  Court  had  a  point  been  strained  to 
bring  the  case  within  the  authorities  cited  in  support  of 
the  decision." 

This  was  probably  said  to  remind  the  Court  of  Appeals 
of  their  duty  to  strain  in  order  to  support  the  decisions  in 
these  cases  when  they  come  before  that  tribunal.  Let  us 
see  what  the  point  is.  Judge  Gould  assumes  that  the  ex- 
press covenants  do  not  run  with  the  land  and  cannot  be 
enforced  ;  that  the  implied  covenants  are  no  better  ;  and 
therefore,  as  the  actions  must  be  maintained  because  they 
had  been  commenced  ;  and  to  use  his  own  words,  "  as  the 
grantee  took  an  aboslute  fee  of  the  land,  released  from  all 
covenants  for  rents,"  the  actions  must  be  maintained  upon 
the  condition  implied  from  the  words  yielding  and  paying. 
Judge  Gould  refers  to  certain  authorities,  and  asserts  of 
them  that  they  all  uphold  such  a  doctrine.  It  may  not  be 
easy  to  conceive  what  he  calls  upholding.  There  is  not 
one  of  them  that  sustains  an  action  upon  a  condition  im- 
plied from  such  or  similar  words.  He  has  cited  no  case 
which  does,  and  no  such  can  probably  be  found.  Judges 
have  sometimes  talked  about  a  speculative  possibility,  but 
have  never  found  one.  That  such  a  case  can  arise  where 
there  are  express  covenants  or  express  conditions,  was  never 
asserted,  until  Main  vs.  Feathers.  The  reasoning  in  support 
of  the  idea  partakes  of  fatuity. 

Having  disposed  of  the  several  collateral  questions,  which 
have  no  connection  with  the  cases  under  discussion,  to  his 
satisfaction,  Judge  Gould  for  the  first  time  approaches  the 
point  of  conflict.  He  agrees  with  the  counsel  as  to  the 
law,  as  construed  in  England,  and  that  these  actions 
could  not  be  maintained  there,  or  within  English  construc- 
tion. 

Speaking  of  Spencer's  case  and  the  later  English  decis- 
ions as  well  as  the  elementary  writers  and  the  rule  laid 
down  by  them,  he  says  of  the  latter  :  "  that  it,  in  connec- 
tion with  the  statute  quia  emptores,  settles  the  law  to  be  that 


95 


even  a  rent,  which  was  the  consideration  of  the  grant  to 
the  lessee — and,  as  in  the  cases  before  us  the  only  consid- 
eration, therefor — is,  as  regards  the  land,  out  of  which  it 
is  reserved,  and  out  of  which  it  is  an  annual  issue,  merely 
void,  unless  the  lessor  retain  in  himself  a  reversion,  or  the 
possibility  of  a  reverter  ;  and  that  on  a  lease  in  fee  he  does 
not  retain  any  such  ;  and  that  therefore  the  lessee — though 
personally  bound  by  the  contract,  and  having  no  personal 
responsibility  as  the  case  may  well  be,  as  he  paid  nothing 
for  his  lease — may  the  next  day  after  getting  his  lease, 
himself  grant  a  fee  absolute  of  the  land  ;  and  thereby  put 
the  land  itself  entirely  beyond  the  reach  of  the  lessor,  who 
has  thus  received  nothing  for  his  land.  And  this  nowith- 
standing  the  rent  is,  by  the  terms  of  the  indenture,  charged 
upon  the  land  by  clause  of  both  distress  and  re-entry — 
thus  being  a  rent-charge  ;  and  also  notwithstanding  the 
indenture  by  its  terms  includes  the  lessee's  assigns,  as  well 
in  the  clause  of  reservation  as  in  the  express  covenants." 

It  will  be  difficult  to  find  two  sentences  in  the  English 
language  which  Qpntain  as  many  misapprehensions  of  the 
law  and  of  its  ordinary  phraseology  as  are  contained  in  the 
above  quotation.  To  notice  the  last  first :  The  idea  is 
again  advanced  that  if  a  lessor  reserves  rent  and  a  clause 
of  distress,  that  is  a  rent  charge.  If  the  lessor  does  not 
expressly  provide  for  distress,  it  is  a  rent  service.  With 
such  profound  misapprehensions  of  ordinary  legal  phrases, 
it  is  no  matter  of  surprise,  that  Judge  Gould  finds  himself 
in  conflict  with  ail  the  adjudications  and  learning  of  the 
past,  and  wonders  how  lawyers  and  judges  have  heretofore 
been  so  ignorant. 

In  the  two  sentences  last  above  quoted  there  is  a  con- 
tinual repetition  of  the  words  lessor,  lessee,  rent  and  lease, 
though  a  grant  in  fee  under  the  statute  quia  emptores,  is  the 
subject  to  which  those  terms  are  applied.  Its  author 
evidently  failed  to  distinguish  between  alienation  and  sub- 
infeudation.   Within  his  legal  acquirements  no  such  thing 


96 


as  a  sale  of  real  estate  seems  to  be  possible.  Every  vendor 
is  a  lessor  and  every  vendee  is  a  lessee.  Covenants  for 
purchase  money  are  covenants  for  rent  and  all  run  with  the 
land.  The  material  of  his  argument  is  principally  made  up 
of  a  misapplication  of  the  words  lease,  lessor,  lessee,  rent, 
landlord  and  tenant.  The  majority  opinion  is  in  that 
respect  a  copy.  Strike  out  those  words,  where  misapplied, 
and  you  strike  out  all  their  reasoning.  They  constitute  the 
premises.  The  mere  definition  of  the  words,  read  along 
with  their  concessions  and  statements,  is  an  unanswerable 
refutation  to  their  whole  argument.  Let  us  see  what  is 
meant  by  a  lease. 

Blackstone  2  vol.  Com.  317 :  u  A  lease  is  properly  a 
conveyance  of  any  lands  or  tenements  (usually  in  considera- 
tion of  rent  or  other  annual  recompense)  made  for  life,  for 
years,  or  at  will,  but  always  for  a  less  time  than  the  lessor  has 
in  the  premises,  for,  if  it  be  the  whole  interestj  it  is  more  pro- 
perly an  assignment  than  a  lease." 

1  Hilliard  on  Real  Property,  chapter  15  ;  "A  lease  is  a 
contract  for  the  possession  and  profits  of  lands,  tenements 
or  hereditaments  to  another  for  life,  for  a  term  of  years,  or 
at  will,  for  a  rent  or  compensation  reserved." 

Webster's  Dictionary  :  Lease  is  defined  as  "  a  demise  or 
letting  of  lands,  tenements  or  hereditaments  to  another  for 
life,  for  a  term  of  years,  or  at  will,  for  a  rent  or  compensa- 
tion reserved." 

Lessor  and  Lessee  being  derivations  of  lease,  have  of 
course  corresponding  meanings. 

2  Preston  on  Conveyancing,  p.  124,  defines  a  lease  as 
follows  :  "  A  lease  at  the  common  law,  is  that  species  of 
assurance  by  which  a  person  who  has  the  fee  simple,  or  a 
particular  estate,  either  in  tail,  for  life  or  years,  creates  a 
term  for  years,  or  at  will,  or  if  he  has  an  estate  of  freehold, 
then  for  life  or  lives,  out  of  that  estate,  reserving  a  reversion 
to  himself.  Hence  the  difference  between  an  under  lease 
and  an  assignment.    At  one  period  it  was  supposed,  that 


97 


the  mere  reservation  of  rent,  or  of  a  right  of  entry  by  a 
termor,  in  an  instrument  importing  to  be  an  underlease,  but 
in  point  of  fact  comprising  all  the  estate  of  the  owner,  was 
an  underlease  ;  in  short  that  it  was  a  lease  as  between  these 
parties.  But  it  is  now  settled,  that  though  the  instrument 
imports  to  be  a  lease,  yet  if  it  does  in  effect  comprise  all  the 
estate  which  resides  in  the  grantor,  it  amounts  to  an  assign- 
ment, and  is  not  an  underlease  ;  and  a  right  of  entry  or  re- 
servation of  rent  will  not  change  the  nature  of  the  estate." 

This  last  definition,  had  it  been  written  to-  sustain  the 
defence  in  the  cases  under  review,  could  not  have  been 
expressed  in  more  favorable  terms.  If  it  be  correct,  it  is  a 
perfect  answer  to  the  claims  of  the  plaintiffs.  That  it  is 
correct,  we  have  the  force  of  an  unbroken  current  of  au- 
thorities in  England  from  the  year  1290,  the  leading  cases 
of  which  have  been  cited.  They  conclude  with  the  una- 
nimous decision  of  the  House  of  Lords  in  Pluck  vs.  Digges, 
before  cited,  2  Dow.  &  Clark,  p.  180.  There  is  an  unbroken 
current  of  authorities  in  this  country,  and  particularly  in 
this  State,  concluding  with  the  De  Peyster  case,  establish- 
ing the  rule  as  above  quoted  fromPresten  ;  and  not  a  single 
elementary  writer  to  the  contrary.  Opposed,  there  are  the 
Irish  cases,  overruled.  Not  one  other  in  any  country  or 
State,  save  only  Main  v.  Feathers  by  Judge  Gould,  Van 
Rensselaer  v.  Bonesteel  by  Judge  Harris,  and  the  cases 
under  review  by  Judges  Harris  Wright  and  Gould. 

Let  us  briefly  recapitulate  the  positions  taken  in  the 
opinions  under  review.  They  admit  the  defendants  to  be 
undisputed  owners  of  the  fee;  the  reversion  to  be  in  the 
state;  the  plaintiffs  to  have  no  estate  in  the  lands,  and  no 
property  except  what  they  may  have  acquired  by  becoming 
owners  ef  certain  covenants  made  by  and  to  parties  during 
the  last  century.  In  other  words,  there  is  nothing  necessary 
in  order  to  constitute  a  landlord,  except  a  covenant  to  pay 
a  certain  sum,  which  in  the  covenant  itself  is  called  rent. 
It  will  be  readily  seen  that  such  an  idea  is  at  war  with  all 
the  authorities  and  with  common  sense. 
13 


98 


It  should  also  be  kept  in  mind  that  the  same  point  was 
distinctly  made  by  plaintiffs'  counsel,  and  as  distinctly  de- 
cided in  the  De  Peyster  case.  The  point  was  put  in  the 
following  manner: 

"  That  the  rent  reserved  with  the  right  of  distress,  irre-  - 
spective  of  the  other  reservations  and  conditions  in  the 
lease,  is  real  estate;  and  under  a  new  name  is  a  portion  of 
the  entire  estate  which  the  lessor  had  in  the  premises  at 
the  time  of  the  execution  of  the  lease." 

The  Court  of  Appeals  decided  that  the  rent  reserved  was 
not  reversionrry,  nor  equivalent  to  a  reversion,  nor  was  it  any 
estate  in  the  land.  They  declared  that  it  was  an  attempted 
innovation  upon  well  settled  law,  and  pronounced  the  rea- 
soning in  its  favor  frail  and  feeble.  The  language  upon  that 
point  will  be  found  quoted  near  the  close  of  the  first  num- 
ber of  this  review. 


Number  XI. 


A  rent  charge,  as  understood  by  Judge  Grould  —  Different  from  law  writers 
—  Covenant  to  pay  rent  charge  never  runs  with  the  land  —  No  right  to 
distrain  ever  existed  in  this  State  except  as  at  common  law  and  for  a 
common  law  rent  —  2  Cow.  652  —  The  word  "  rent  "  always  construed 
to  mean  rent-service,  or  such  as  is  incident  to  the  reversion  between  lord 
and  tenant  —  Distress  for  rent  abolished  —  No  other  change  made  by 
statute  —  Convention  of  1846  —  Extent  of  the  questions  involved  —  Judge 
Gould  changes  the  tenor  of  his  argument  and  concedes  to  the  Statute 
quia  empiores  all  that  is  claimed  for  it  by  the  defendants  —  He  virtually 
concedes  our  Statutes  to  be  similar  —  Attempts  to  reason  them  out 
of  the  way  —  Copy  of  our  Statute  and  of  the  English  act. 

Whoever  undertakes  a  critical  reading  of  the  leading 
opinion  by  Judge  Gould  in  these  cases,  will  find  the  need 
of  a  glossary  Adapted  to  the  phraseology  used.  For  in- 
stance, a  rent  charge  will  be  understood  by  those  who  have 
learned  law  from  Blackstone,  and  other  like  "  foreign  " 
authorities,  to  exist  only  where  the  owner  of  the  rent  has 
no  future  interest,  or  reversion  expectant  in  the  land.  In 
the  opinion,  it  is  applied  where  the  party  owns  the  rever- 
sion to  which  the  rent  is  incident,  provided  there  is  an 
express  provision  for  the  right  to  distrain.  In  other  words, 
it  is  but  the  common  law  rent  with  a  contract  provision  of 
distress  added. 

Without  such  a  definition  of  that  term,  some  of  the  as- 
sertions contained  in  the  opinion,  cannot  be  explained. 
For  example,  take  this  statement  :  "  Nor  was  our  own 
law  entered  into  in  detail,  as  there  have  been  enough  deci- 
sions here,  fully  to  authorise  our  saying  (without  such 
detail)  that  here  a  rent  charge  runs  with  the  land."  He 
referred  to  his  own  decision  in  Main  v.  Feathers. 


100 


A  rent  charge  being  understood  as  the  books  define  it, 
this  assertion  would  be  unfounded  in  fact.  Our  reports  do 
not  contain  a  single  case  holding  a  rent  charge  to  run  with 
the  land,  or  the  owner  thereof  to  have  it  in  his  power  to 
take  the  land  to  himself.  And,  except  Main  v.  Feathers, 
not  a  case  can  be  found  in  the  world.  A  rent  charge  un- 
derstood as  it  is  by  Judge  Gould,  is  the  common  law  rent 
incident  to  the  reversion,  and  what  every  body  else  under- 
stands as  a  rent  service. 

The  owner  of  a  rent  service  is  the  owner  of  the  land. 
He  is  entitled  to  rents  for  its  use  as  a  rendition  therefor. 
If  the  party  in  possession  fails  to  pay,  the  owner  takes 
possession  as  his  remedy,  if  he  choose,  and  if  such  be  the 
condition  of  the  lease.  There  is  an  obvious  propriety  in 
such  a  remed}^,  for  he  is  only  taking  his  own,  and  not  the 
property  of  another. 

It  may  be  doubted  whether  the  right  to  distrain  ever 
existed  in  this  State  except  as  at  common  law,  and  merely 
for  a  common  law  rent.  It  seems  to  have  been  undisputed 
that  our  statutes  were  only  declaratory  of  the  common  law, 
and  did  not  enlarge  the  right  of  distress  as  it  existed  at 
common  law.  This  was  so  conceded  by  counsel  and  so 
held  by  the  Court  in  Cornell  v.  Lamb,  2  Cow.  652,  before 
cited.  It  is  certain  that  the  common  law  never  gave 
distress,  except  for  rent  as  the  incident  of  a  reversion.  Our 
statutes  have  been  equally  confined. — See  1  R.  L.  p.  434, 
and  1  R.  S.  p.  746 — With  one  exception  they  were  sub- 
stantially transcripts  of  the  English  act  4  Geo.  1  chap.  38. 
There  is  in  our  act,  no  section  or  provision  corresponding 
to  the  5th  section  of  the  English  statute  which  provided 
distress  for  rent  seek,  rents  of  assize  and  chief  rents.  This 
was  in  addition  to  the  2d  section  of  the  statutes  providing 
distress  for  rent.  The  use  of  the  word  rent  in  these 
statutes,  English  as  well  as  American,  has  always  been 
taken  in  its  strictly  common  law  meaning,  that  is,  as  the 
incident  of  the  reversion  between  landlord  and  tenant.  It 


101 


has  not  meant  rent  charge  or  rent  seek,  or  any  other  kind 
except  rent  service.  Distress  could  not  be  made  without 
tenure.  The  covenant  did  not  run  with  the  land  without 
tenure.  See  Burton  on  Real  Property  §  1057.  16  John. 
292,  and  other  authorities  heretofore  cited. 

If  distress  could  ever  be  instituted  as  a  remedy,  by  the 
compact  of  the  parties,  and  made  operative  in  this  State 
for  any  demand,  except  rent,  it  can  be  now.  If  a  vendor 
could  at  any  time  have  secured  a  right  to  distrain  for  pur- 
chase money,  or  for  any  demand  except  rent,  he  can  now. 
Distress  for  rent  is  abolished,  but  for  no  other  demand. 
Did  it  exist  for  any  other,  which  the  legislature  meant  to 
save  ?  Or  did  they  limit  the  abolition  of  distress  because 
it  existed  only  in  regard  to  rent  ?  The  answer  cannot  be 
doubtful.  Distress  could  be  had  only  for  rent,  hence  the 
abolition  was  limited  to  rent.  By  the  word  rent  is  meant 
the  return  or  render  in  money  or  anything  else  by  one  party 
for  the  use  of  another's  land. 

It  was  a  covenant  of  that  kind  alone  which  could  be  made 
to  run  with  andp  burden  an  estate  in  lands.  A  condition 
could  be  affixed  to  no  other  than  a  tenancy  in  favor  of  the 
reversioner,  whereby  an  estate  in  lands  could  be  forfeited. 
This  was  undoubtedly  so  understood  by  the  Constitutional 
Convention  of  1846.  They  provided  a  restriction,  but  only 
for  leases,  and  then,  limited  to  rents.  The  purpose  of  that 
provision  was  to  prevent  lands  from  being  burdened  with 
covenants  for  long  periods.  It  was  confined  to  leases  and 
to  rents  and  services,  because  such  covenants  and  conditions 
can  exist  in  no  other  connection  to  be  a  burden  upon  lands. 
The  provision  was  not  extended  to  alienations  in  fee,  nor 
did  it  limit  the  number  of  instalments  in  which  the  pur- 
chase money  should  be  paid.  There  is  nothing  now  to 
prevent  just  such  deeds  with  just  such  covenants  and  con- 
ditions as  exist  in  these  cases.  Made  now,  they  will  run 
with  the  land  just  as  well  as  though  made  70  years  ago. 
Restrictive  legislation  has  never  been  extended  to  aliena- 


102 


tions,  or  the  purchase  price  therefor,  because  the  lawmakers 
have  always  regarded  such  covenants  only  personal  and  not 
possible  to  be  made  to  run  with  the  land.  In  that  under- 
standing they  have  followed  the  adjudications  of  the  courts. 
Hence,  if  a  vendor  now  chooses  to  receive  the  purchase 
money  in  annual  instalments,  extending  through  more  than 
12  years,  or  for  an  unlimited  number  of  years,  what  is  there 
to  prevent  ?  If  he  choose  to  add  provisions  of  distress  or 
of  re-entry,  what  can  hinder?  If  they  could  be  made 
operative  70  years  ago  by  conventional  arrangement  of  the 
parties,  why  can  they  not  now  ?  If,  when  made  then, 
they  run  with  the  land  and  continue  so  to  run,  why  not,  if 
made  now? 

In  the  leading  opinion,  all  such  questions  will  be  found 
answered,  substantially,  in  the  affirmative.  The  reasoning 
all  tends  to  that  point.  The  majority  opinion  coincides 
therewith.  Every  deed  in  fee  containing  covenants  or 
conditions  for  the  grantee  to  observe,  is  pronounced  a  lease ; 
the  grantor,  a  lessor ;  the  grantee  a  lessee  ;  the  covenantor, 
a  tenant,  and  the  covenantee,  though  without  the  reversion, 
a  landlord.  The  latter,  by  virtue  of  the  covenant,  has  an 
assignable  "  entity/7  and  by  transferring  the  covenant  his  as- 
signee gets  this  entity,  and  thereby  can  take  the  farm  from 
its  owner  for  non  payment  of  the  purchase  money  coven- 
ant, after  notice  of  fifteen  days.  It  claimed  that  the  Re- 
vised Statutes  perfected  such  an  arrangement,  if  it  was 
not  before  made,  and  the  owner  of  such  a  covenantor  con- 
dition was  placed  on  the  same  footing  with  a  party  owning 
the  land  who  had  leased  it  for  a  term  of  years.  Such  is 
the  burden  of  argument  throughout  both  opinions.  The 
position  of  the  court  makes  the  questions  involved  gener- 
ally applicable  to  the  whole  State,  and  not  to  one  locality 
alone.  The  doctrine  which  will  take  the  farm  from  the 
owner  in  Albany  county  and  give  it  to  a  stranger,  will  pro- 
duce the  same  result  in  Erie  county.  Its  effects  will  be  the 
same  upon  a  deed  of  present  or  future  date,  as  upon  one 


103 


executed  in  the  last  century.  City  property  is  no  more  ex- 
empt from  the  workings  of  the  doctrine  than  county.  The 
owner  of  a  fine  mansion,  if  our  Judges  be  right,  may  find 
himself  divested  of  his  estate  by  violation  of  some  condi- 
tion inserted  by  a  previous  owner  on  alienation.  There 
may  have  been  provision  that  his  house  shall  be  built  in  a 
particular  manner,  of  specified  materials,  painted  of  par- 
ticular color,  the  windows  of  certain  form,  and  neglect  or 
omission  to  comply,  to  work  a  forfeiture  of  the  premises. 
Covenants  and  conditions  of  every  conceivable  variety  may 
be  inserted  and  made  operative,  only  once  establish  the  doc- 
trine of  the  decisions  under  review  These  things  are 
mentioned  for  the  purpose  of  reminding  the  reader  that 
this  is  not  a  local  or  sectional  question,  but  reaches  every 
rod  of  land  in  the  State,  and  every  owner. 

The  position  of  the  defendants'  which  we  have  labored 
to  substantiate  in  this  review,  is,  that  the  lands  in  question 
were  not  burdened  by  the  covenants,  nor  affected  by  the 
conditions  inserted  in  the  deeds,  because  those  deeds  were 
grants  in  fee  nfade  under  a  statute  substantially  like  the 
statute  quia  emptores  of  England.  The  defence  rested  upon 
the  effects  to  result  from  the  statute.  The  plaintiff's 
counsel  conceded  to  the  statute  the  full  effects  claimed  for 
it.  In  the  leading  opinion  those  effects  are  first  denied 
and  then  admitted.  The  only  aim  of  the  first  half  of  that 
opinion  seems  to  have  been  to  make  out  that  such  were  not 
the  consequential  results  of  the  English  statute.  Judge 
Gould  cavils  against  the  English  decisions  and  English 
authorities  for  so  construing  the  act.  He  denies  the  le- 
gitimacy of  the  reasoning  whereby  such  a  construction  is 
reached.  He  denounces  it  as  unjust  and  therefore  not 
"  good  law.''  He  urges  that  it  leads  to  unrighteous  judg- 
ments and  should  not  be  followed.  Two  or  three  times  he 
thinks  he  discovers  something  in  Lord  Coke's  notes  over- 
throwing the  whole  thing.  Once  Littleton  gets  credit  for 
knowing  something,  because  he  is  erroneously  understood 


104 


to  favor  the  idea,  that  rent  could  be  reserved  to  a  grantor 
in  fee  as  well  after  as  before  the  statute.  He  struggles 
through  page  after  page  of  logic  and  authority,  mixed  of 
about  equal  parts  and  of  about  equal  strength  and  point,  to 
show  the  error  of  such  a  construction  and  its  unrighteous 
consequences.  Finally  he  sweepingly  and  triumphantly 
asserts  that  no  authority  except  Lord  Holt  ever  intimated 
that  any  difference  existed  in  regard  to  the  reservation  of 
rent,  between  a  grant  in  fee  under  the  statute  quia  emptores 
and  a  grant  in  fee  at  common  law.  The  case  which  is 
alleged  to  contain  the  doctrine  of  Lord  Holt,  the  learned 
Judge  says,  "is  that  of  Brewster  v.  Kidgel,  or  Kitchell, 
or  Kitchin,  spelled  variously, — which  is  reported  nine  dif- 
ferent times,  making  a  great  apparent  array  of  authority." 

The  reader  might  infer  from  the  statement  that  counsel 
for  defendants  had  cited  and  relied  upon  that  case  as  the  sole 
authority  which  could  be  produced  ;  and  for  the  purpose 
of  effect,  had  referred  to  it  in  nine  different  reports  and  as 
different  a  case  in  each,  as  theie  were  different  names  ;  and 
that  they  had  been  baffled  in  the  attempt  at  imposition,  only 
by  the  superior  learning  of  the  author  of  the  leading  opinion. 
The  statement  may  have  been  made  with  a  view  to  produce 
that  impression.  Unless  it  was,  it  is  not  easy  to  perceive 
why  it  was  made  at  all.  If  made  for  that  purpose  it  is 
doubly  ficticious.  The  case  was  not  mentioned  by  counsel 
upon  the  argument,  nor  cited  upon  the  points  ;  but  a  great 
many  other  cases  were,  some  of  which  have  been  referred 
to  in  the  preceding  pages  of  this  review.  The  latter  are 
not  noticed  in  the  opinion.  It  was  easier  to  copy  the  Bone- 
steel  opinion,  and  berate  the  dictum  by  Lord  Holt,  than  to 
meet  the  question  upon  the  authorities  presented. 

But  while  Judge  Gould  is  showing  by  his  new  discoveries 
in  Coke's  notes  upon  Littleton,  and  by  the  force  of  his  rea- 
soning that  the  statute  quia  emptores  did  not  produce  the 
effects  claimed  for  it,  even  in  England  ;  that  a  grantor  in  fee 
could  reserve  rent  after  its  enactment  just  as  well  as  before, 
and  with  precisely  the  same  effect ;  and  just  when  the  read- 


105 


er  is  prepared  to  hear  a  decision  announced  for  plaintiffs 
upon  that  ground,  all  at  once  he  changes  his  position,  and 
with  undiminished  enthusiasm  goes  off  in  exactly  the  oppo- 
site direction,  apparently  not  even  conscious  that  he  has 
made  the  change.  He  strikes  down  Lord  Coke  with  just 
as  little  ceremony  as  he  set  him  up  ;  stalks  over  Littleton  and 
makes  amends  to  the  English  courts  by  defending  the  course 
they  have  taken.  He  admits  the  statute  to  have  produced 
in  England  all  that  is  claimed  for  it.  Not  only  so,  but  he 
admits  such  effects  to  have  been  the  legitimate  consequence 
of  the  policy  and  purpose  of  the  act.  He  goes  further  ;  he 
commends  its  policy. 

"  When  the  statute  quia  emptores  was  passed  in  England 
(intended  for  the  benefit  of  the  chief  lord,  not  of  the  ten- 
ant,) the  policy  of  that  law  was  held  to  be  to  discourage  all 
relations  between  the  grantor  of  land  and  the  grantee  which 
could  in  any  way  impair  or  restrain  the  estate  granted  to 
the  latter ;  and  consequently  that  policy  called  the  covenants 
of  the  grantee,  (no  matter  how  absolutely  of  the  very  es- 
sence of  the  conveyance,)  personally  and  not  binding  the 
lands  in  the  hands  of  its  assignee.  But  since  the  reasons 
assigned  for  this  policy  were  to  prevent  subinfeudation  (for 
the  benefit  of  the  chief  lord  ;)  and  for  the  benefit  of  the 
assignee,  to  protect  him  from  the  burden  of  a  covenant  or 
condition  to  which  he  did  not  consent,  and  for  which  he  re- 
ceived no  consideration  ;  of  which,  indeed,  he  was  or  might 
be  entirely  ignorant  until  actually  convicted  for  a  forfeiture 
or  sued  on  the  covenant." 

In  the  foregoing  quotation  the  concession  is  full  and  un- 
equivocal that  the  statute  quia  emptores  produced  the  effects 
claimed  for  it  by  the  defence.  After  its  enactment  no  party 
could  make  a  deed  in  fee  and  reserve  rents,  or  impose  con- 
ditions to  be  a  burden  upon  the  land.  Covenants  of  that 
form  were  personal  merely  and  not  binding  upon  the  lands 
in  the  hands  of  an  assignee.  Conditions  named  could  not 
work  a  forfeiture,  or  in  any  way  abridge  the  quantity  of  the 
14 


106 


estate  granted.  The  grantor  having  parted  with  his  whole 
estate,  could  not  exercise  control  over  it  or  reserve  any 
power  to  interfere  with  its  use  and  occupation. 

Such  are  the  concessions  of  the  leading  opinion.  The 
majority  opinion  makes  the  same  admission.  They  are  no- 
ticed in  the  first  number  of  this  review. 

The  question  naturally  occurs,  why  do  not  the  reasons 
which  Judge  Gould  assigns  and  urges  in  favor  of  the  Statute 
in  England,  and  particularly  in  defence  of  its  policy,  apply 
with  equal  force  here  1  Is  not  an  American  farmer  as  wor- 
thy of  protection  in  the  enjoyment  of  his  property  as  an 
English  farmer  ?  What  has  become  of  Judge  Gould's  pref- 
erence for  things  American  as  distinguished  from  foreign, 
vaunted  on  every  page  of  his  opinion  ? 

There  is  some  satisfaction  in  the  fact  that  all  agree  to 
the  proposition  that  the  defence  would  be  good  under  the 
English  laws  and  before  an  tEnglish  court.  It  is  worth 
something  to  know  that  there  is  one  country  on  earth 
where  the  rights  of  property  are  respected.  But  what  a 
commentary  upon  our  own  government,  the  three  judges 
present  in  these  decisions  and  the  opinions  accompanying 
them  ?  They  substantially  proclaim  to  the  thousands  of 
land  owners  of  Albany  and  Rensselaer  counties,  that  their 
misfortune  and  the  misfortune  of  their  defence  is,  that  they 
live  on  American  and  not  on  British  soil.  Subject  to  Brit- 
ish laws  and  to  a  British  administration  of  the  laws,  their 
property  would  be  safe,  and  they  would  be  safe  in  the  en- 
joyment of  it.  Had  the  State  remained  a  colony  of  England, 
the  defence  interposed  would  have  been  respected  and  sus- 
tained. The  statutes  of  New  York  put  those  who  do  not 
own,  and  those  who  do  own  lands  on  the  same  footing. 
This  a  provision  heretofore  overlooked,  or  disregarded. 

Of  course  the  judicial  announcement  of  decisions  which 
avowedly  place  this  State  lower  in  the  scale  of  civilization 
than  even  Russia — decisions  which  attribute  to  our  laws 
an  utter  disregard  of  the  rights  of  property  in  order  to  in- 


107 


troduce  a  system  of  landlordism  which  civilization  has 
outgrown  and  shaken  off  centuries  since,  has  not  been  un- 
accompanied with  reasons. 

In  the  leading  opinion,  the  line  between  England  and 
this  State  is  marked  as  follows.  Referring  to  the  statute 
quia  emptores,  after  having  admitted  its  good  effects  and 
commended  its  policy,  this  language  occurs  : 

"  But  that  statute  never  existed  here."  The  majority 
opinion  has  copied  almost  the  same  words. 

The  reader  would  naturally  enough  suppose,  were  he  not 
acquainted  with  the  question,  that  as  a  matter  of  fact,  the 
statute  did  not  exist  here  in  1790-1796  ;  that  nothing  of 
the  kind  was  even  to  be  found  on  our  statute  book.  Unless 
such  an  impression  was  studied  and  designed,  it  is  difficult 
to  perceive  why  the  assertion  was  made  to  take  that  form 
in  both  opinions.  But  such  cannot  have  been  the  inten- 
tion, because  as  an  assertion  of  fact,  it  is  unfounded.  To 
save  the  reader  from  imposition,  from  any  quarter,  we  will 
give  the  statute  quia  emptores  as  well  as  our  own  act  of 
1787. 

16  Our  lord,  the'king,  &c,  hath  granted,  provided  and  or- 
dained, that  henceforth  it  shall  be  lawful  to  every  freeman 
to  sell,  at  his  own  pleasure,  his  lands  or  tenements,  or  part 
thereof,  so  nevertheless  that  the  feoffee  shall  hold  the 
same  lands  or  tenements  of  the  same  chief  lord  of  the  fee, 
and  by  the  same  services  and  customs  as  his  feoffor  held 
them  before." 

That  is  the  statute  quia  emptores,  and  all  there  is  of  it 
except  the  preamble. 

The  first  section  of  the  act  of  1787  was  as  follows  : 
u  Be  it  enacted,  &c,  that  it  shall  forever  hereafter  be 
lawful  for  every  freeholder  to  give,  sell  or  alien  the  lands 
or  tenements  whereof  he  or  she  is,  or  at  any  time  hereafter 
shall  be  seized  in  fee  simple,  or  any  part  thereof,  at  his  or 
her  pleasure,  so  always  that  the  purchaser  shall  hold  the 
ands  or  tenements  so  given,  sold  or  aliened,  of  the  chief 


108 


lord,  if  there  be  any,  of  the  same  fee,  by  the  same  services 
and  customs  by  which  the  person  or  persons  making  such 
gift,  sale  or  alienation,  before  held  the  same  lands  or  tene- 
ments." 

Then  followed  provisions  as  to  gift,  sale  or  alienation  of 
part  of  the  premises,  to  the  same  effect.  As  a  question  of 
fact,  the  assertion  is  therefor  obviously  wrong.  As  a  ques" 
tion  of  law,  it  has  been  shown,  in  previous  numbers  of  this 
review,  to  be  equally  erroneous,  by  the  decision  of  the 
Court  of  Appeals.  That  Court  had  decided  the  statutes  of 
this  State  to  have  produced  upon  the  laws  of  this  State, 
precisely  the  same  effects  as  the  statute  of  England  had 
produced  there. 

That  statute  then  being  the  settled  law  of  the  State,  we 
shall  now  proceed  to  consider  the  several  statutes  from 
which  the  three  Judges,  without  the  benefit  of  discussion, 
except  as  carried  on  by  themselves,  have  extracted  an 
estate  unknown  to  the  law  and  to  lawyers,  which  they  de- 
nominate an  "  entity "  and  announce  to  be  pro  hac  vice 
equivalent  to  a  reversion. 


Number  XII. 


The  error  of  the  Judges  in  regard  to  the  Statutes  —  Invention  of  a  new 
estate  which  thej  call  an  entity  —  The  lord  of  the  "  entity  "  is  to  have 
possession  —  The  5th  section  of  the  Statute  of  1787  —  Rent,  what  it  means 
in  that  Statute  —  No  conflict  of  the  authorities  —  The  reasons,  why  their 
application  of  that  section  is  erroneous  —  Our  statutes  decided  to  be  like 
the  English  —  Statute  of  1805  and  the  ex  post  facto  effect  attempted  in  the 
decisions  under  review  —  The  term  "  allodial,"  and  its  meaning  —  Ob- 
vious meaning  of  the  Statutes  —  Rents  could  not  have  been  reserved  upon 
leases  for  lives  and  years  without  the  saving  section  —  The  Judges  mis- 
apply the  words  lease,  lessor,  &c  —  Their  doctrine  is  that  purchase  money 
covenants  run  with  the  land  —  They  did  not  understand  the  term  rent. 

In  the  first  number  of  this  review,  the  conflict  between 
these  cases  and  the  De  Peyster  case,  has  been  generally 
exhibited.  In  the  second  number,  we  have  noticed  the 
first  step  in  the  process  of  reasoning,  based  upon  the  5th 
section  of  the  statute  concerning  tenures  of  1787,  and 
wherein  it  has  directly  trespassed  upon  the  decision  of  the 
Court  of  Appeals.  The  reader's  attention  was  there  called 
to  the  fact,  that  the  saving  section,  relied  upon,  was  particu- 
larly pressed  upon  the  Court  in  the  De  Peyster  case,  and 
received  particular  attention,  which  resulted  in  the  judicial 
construction  that  it  could  have  no  effect,  except  upon  deeds 
made  before  1776. 

The  views  of  the  Revisers  upon  the  same  statutes  were 
referred  to,  also  giving  to  them  a  meaning  and  purpose, 
with  which  the  decisions  under  review  are  directly  at  war. 
It  was,  in  the  second  number,  fully  shown,  that  the  5th  sec- 
tion, now  so  ceremoniously  laid  down  as  the  corner  stone 
of  the  new  feudal  system  without  feudal  tenures,  was  only 


110 


a  saving  section  appended  to  the  second  section,  and,  had 
no  possible  effect  upon  the  first ;  that  the  second  abolished 
all  the  incidents  of  military  tenures,  and  the  5th  was 
designed  to  save  those  having  such  connection,  which  were, 
notwithstanding  the  connection,  consistent  with  and  com- 
mon to  socage  tenures. 

There  were  some  things  omitted  in  that  connection,  be- 
cause there  were  certain  terms  and  relations  involved, 
necessary  to  be  understood,  in  order  to  an  intelligent  dis- 
cussion. It  was  necessary  to  know  what  is  meant  in  the 
statutes  and  in  elementary  works,  by  the  terms  lease,  land- 
lord and  tenant,  and  rent.  Having  explained  those  terms 
and  the  relations  which  they  present,  by  reference  to  lead- 
ing and  authoritative  decisions,  we  are  now  ready  to  resume 
the  further  discussion  of  that  point. 

It  may  be  remarked  again,  as  heretofore,  that  the  funda- 
mental error  of  the  decisions  under  review,  lies  in  the 
narrow  understanding  of  the  statutes.  The  Judges  did  not 
extend  their  ideas  beyond  feudal  tenures.  It  did  not  occur 
to  them,  that  tenures  existed,  and  might  continue  to  exist* 
between  individuals  upon  leases  for  life  or  lives,  and  also 
for  years,  notwithstanding  the  abolition  of  feudal  tenures  ; 
and  that  legislation  was  just  as  necessary  to  regulate  such 
tenures  after,  as  before,  such  abolition.  Hence,  when  the 
first  section  of  the  act  of  1787,  in  connection  with  the 
statute  in  relation  to  escheats  of  1779,  made  tenure  between 
individuals  upon  grants  in  fee  impossible,  and  left  all  tenures, 
connected  with  estates  in  fee,  subsisting  between  the  owner 
of  the  fee  and  the  State  ;  and  when  subsequent  sections  of 
the  same  statute  prescribed  regulations  of  tenures,  and 
what  covenants  or  conditions  might  be  imposed,  and  what 
should  not,  our  judges,  seeing  nothing  but  feudal  tenures, 
and  of  course  perceiving  no  tenure  of  any  kind  to  which 
the  regulating  sections  could  apply,  came  to  the  absurd 
conclusion,  that  the  legislature  first  abolished  feudal  tenures 
and  then  made  laws  to  create  a  feudal  system  without 


Ill 


tenure  for  its  foundation;  and  that  they  applied  socage 
tenure  where  it  is  admitted  no  tenure  existed,  and  thus  left 
the  whole  State  subject  to  the  feudal  law  and  the  imposi- 
tion of  feudal  burdens. 

The  three  Judges  attribute  another  absurdity  to  the  act 
of  1787.  The  first  section  is  admitted  to  be  the  statute 
quia  emptores.  It  is  admitted  to  have  been  the  policy  of 
that  statute  to  prevent  covenants  and  conditions  from  being 
attached  as  burdens  upon  estates  in  fee,  and  to  have  pro- 
duced its  designed  object  wherever  it  existed.  But  while 
admitting  this,  they  charge  upon  the  statute  of  1787,  that 
a  subsequent  section  utterly  counteracted  and  destroyed 
the  first  section.  If  they  are  right  in  this  construction, 
they  should  have  called  the  5th  section  a  destroying  and 
not  a  saving  section.  If  they  are  right,  that  statute  has  no 
parallel  for  folly  and  inconsistency  in  the  history  of  legisla- 
tion. One  section  is  inserted  merely  to  be  anulled  by 
another.  The}7  force  the  construction  contrary  to  the  uni- 
form understanding  of  similar  statutes '  for  two  centuries; 
and  contrary  to#the  recent  decision  of  the  Court  of  Appeals 
on  the  same  subject.  They  force  it,  not  to  maintain,  but 
to  subvert  the  existing  rules  whereby  the  real  property  of 
the  State  is  held  ;  and  they  do  it  to  eject  the  present  own- 
ers of  Albany  and  Rensselaer  counties  from  their  lands, 
their  titles  to  which  are  coexistent  with  the  settlement  of 
the  country  ;  or  of  subjecting  them  and  their  successors 
to  the  remotest  period  of  time,  to  oppressive  and  degrading 
exactions. 

Let  us  now,  pursue  the  examination  of  that  part  of  their 
argument  which  assumes  to  be  founded  upon  the  5th  sec- 
tion of  the  act  of  1787. 

The  argument  is,  that  the  5th  section  was  intended  to  ob- 
literate, and  did  obliterate  all  distinctions  of  tenure;  and,  at 
the  same  time,  subjected  all  the  lands  in  the  State  to  the 
feudal  system.  Hereafter,  they  are  to  be  held  of  no  one, 
except  the  lord  of  the  "  entity/'  and  by  no  one,  without  his 


112 


permission.    He  is  to  be  armed  with  the  power  of  the 

county  to  enforce  submission,  or  to  drive  the  people  off  in 
case  they  refuse.  In  order  to  accomplish  this  novel  and 
darling  institution  of  "  entities,"  its  judicial  projectors  have 
found  it  necessary  to  do  by  the  laws  of  real  property,  very 
much  as  was  once  done  to  human  language,  at  the  tower  of 
Babel — introduce  utter  and  perfect  confusion.  All  estates 
are  to  be  melted  into  one,  to  wit  :  the  "  entity  and  but 
one  party  is  to  be  protected  by  the  courts,  to  wit  :  the 
lord  of  the  "  entity." 

The  section  relied  upon  to  work  this  revolution  will  be 
found  copied  in  the  second  number  of  this  review.  It  men- 
tions "rents  certain,  or  other  services  incident  or  belonging 
to  tenure  in  common  socage,"  with  the  fealty  or  distress  in- 
cident thereunto.  Now  let  us  see  how  that  section  is  to  be 
applied  to  the  cases  under  discussion. 

It  has  been  shown  by  unquestionable  authority,  that  rent 
can  exist  only  as  an  incident  of  the  common  law  relations  of 
lord  and  tenant  ;  and  that  those  relations  cannot  exist  with- 
out two  estates,  the  reversion  and  the  tenancy.  The  cases 
are  numerous,  which  hold  our  various  statutes  in  regard  to 
rent  and  the  collection  thereof,  to  mean  the  common  law 
rent  and  no  other.  Some  of  them  have  been  cited.  There 
are  many  others,  not  necessary  to  name,  because  they  are 
familiar  to  every  practicing  lawyer,  and  can  readily  be 
found  by  referring  to  the  digests. 

Rent  is  a  creature  of  the  common  law.  It  cannot  be 
created  by  contract.  That  is,  it  is  not  enough  that  parties 
may  stipulate  that  the  relations  of  lord  and  tenant  exist 
between  themselves,  and  that  certain  sums  to  be  paid  shall 
be  regarded  as  rent.  There  must  be  something  besides 
words.  An  estate  must  pass  and  one  must  be  reserved. 
Rent  must  be  a  return,  a  render  for  the  use  or  possession  of 
one  estate  to  the  owner  of  the  other.  No  case  can  be  found 
in  the  books  holding  a  contrary  doctrine,  except  the  Irish 
cases,  and  those  by  the  three  Judges  of  the  third  dis- 


113 


trict.  This  assertion  is  made  with  the  more  confidence  be- 
cause our  adversaries,  ministerial  as  well  as  judicial,  have 
been  frequently  challenged  to  produce  one,  and  have  never 
been  able  to  do  it.  It  is  the  language  of  all  the  authorities, 
that  rent  must  be  the  incident  of  the  reversion  and  connect- 
ed with  tenure. 

It  is  admitted,  by  all  the  three  judges,  that  if  the  actions 
are  to  be  maintained  at  all,  the  foundation  must  be  laid  in 
the  5th  section  of  the  act  of  1787.  The  operation  of  that 
section  is  expressly  limited  to  rents  and  services  incident  or 
belongiDg  to  tenure  in  common  socage.  The  intention  is 
not  left  to  be  determined  by  the  definition  of  words  alone  ; 
the  connection  with  tenure  is  named  and  required.  Hence, 
until  it  be  shown  that  tenure  was  created  by  the  deeds 
in  question,  between  the  parties  to  those  deeds,  and  until  it 
be  shown  that  it  now  exists  between  the  parties  to  these 
actions,  the  5th  section  and  its  provisions  have  no  possible 
bearing  upon  the  question  presented.  The  reasons  are  two- 
fold and  obvious.  First,  There  is  no  rent ;  and,  second, 
Certainly  none  incident  or  belongiDg  to  tenure  in  common 
socage.  They  admit  that  no  tenure  of  any  kind  was  creat. 
ed  by  the  deeds  in  question,  or  existed  between  the  parties. 

The  majority  opinion  has  this  decided  language  upon  that 
subject.  Speaking  of  our  Statute  of  1779,  as  to  escheats, 
and  of  the  act  concerning  tenures  of  1787,  it  says 

16  Their  effect,  unquestionably  was,  to  abolish  feudal  and 
substitute  'allodial  tenure." 

This  was  only  saying  in  different  language,  what  was 
said,  in  the  De  Peyster  case,  as  a  part  of  the  unanimous 
opinion  of  the  Court  of  Appeals,  in  the  following  words  : 

u  These  Statutes  performed  the  same  functions  and 
wrought  the  same  changes  in  the  feudal  tenures  of  this 
State  as  the  Statute  of  quia  emptores  did  in  England 
They  put  an  end  to  all  feudal  tenure  between  one  citizen 
and  another,  and  substituted  in  its  place  a  tenure  between 
each  landholder  and  ,the  people  in  their  sovereign  capa- 
15 


114 


city.  They  converted  all  rents  upon  leases  in  fee,  from 
rent  service,  into  rent  charges,  or  rent  seek." 

As  the  three  judges  affirm,  the  decision  of  the  Court  of 
Appeals,  in  holding  that  no  tenure  was  created  by  these 
deeds  and  none  existed  between  the  parties,  that  point  may 
be  regarded  as  settled. 

In  this  connection,  though  it  is  not  strictly  in  the  order 
of  the  argument,  let  us  notice  the  kindred  idea  of  the  three 
Judges,  that  the  revisers  proposed  to  introduce  the  feudal 
system,  and  the  Revised  Statutes  actually  did  introduce 
that  system  all  over  the  State.  Whether  it  were  so  or 
not,  cannot  affect  the  cases  under  review,  for  the  rea- 
son that  the  deeds  upon  which  they  are  founded,  were 
made  more  than  thirty  years  antecedent  to  those  statutes. 
The  rights  and  property  of  the  parties  to  the  deeds  were 
fixed,  and  could  not  bo  changed  by  ex  post  facto  legislation. 
But  let  us  examine  the  alleged  proposition. 

A  more  startling  assertion,  or  one  more  opposed  to  the 
general  understanding  of  lawyers  and  judges,  could  not 
have  been  made.  In  the  De  Peyster  case,  counsel  for 
plaintiff,  while  claiming  subinfeudation  lawful  before,  ad- 
mitted that  it  was  not,  after  the  Revised  Statutes.  During 
the  whole  period  of  our  State  Government,  and,  especially 
since  1830,  the  feudal  system  has  never  been  spoken  of 
except  to  be  denounced  as  a  relic  of  barbarism  and  of  bar- 
barous oppression.  It  has  received  commendation  from  no 
quarter  until  taken  into  the  special  keeping  of  Mr.  Justice 
Gould  and  his  associates. 

It  is  now  reasoned  into  existence,  in  this  way.  By  the 
third  section,  1  R.  S.,  718,  all  lands  within  the  State 
are  declared  to  be  allodial,  and  to  be  the  entire  and  abso- 
lute property  of  the  owners,  subject  only  to  escheat ;  and 
all  feudal  tenures  of  every  description,  with  all  their  inci- 
dents, are  abolished 

The  term  allodial,  is  defined  to  mean  free  of  rent  or  ser- 
vice ;  held  independent  of  a  lord  paramount ;  opposed  to 


115 


feudal.  It  is  a  derivative  of  allodium,  which  means  land 
as  the  absolute  property  of  the  owner,  real  estate  held  in 
absolute  independence,  without  being  subject  to  any  rent, 
service,  or  acknowledgment  to  a  superior. 

If  the  statutes  had  stopped  with  the  3d_section,  no  party 
could  have  leased  lands  for  years  or  for  life,  reserving 
rents  and  services,  to  be  any  thing  more  than  personal  de- 
mands. Third  parties,  coming  in  as  assignees,  would  not 
have  been  personally  liable,  any  more  for  lands,  than  for  a 
horse  or  other  personal  property.  Rents  and  services  were 
feudal  incidents,  and  by  the  third  section  were  forbidden. 
Such  incidents  belonged  to  leases  for  life  and  years,  as 
well  as  in  perpetuity.  Socage  tenure,  as  well  as  tenure  by 
knight  service,  was  applicable  to  all  leases  alike.  So  the 
revisers  understood  the  subject,  as  is  made  evident  from 
their  reference,  and  comments  upon  Cornell  v.  Lamb,  2 
Cow.  652.  That  was  a  lease  by  parol  for  a  term  of  years. 
Chief  Justice  Savage  held  that  where  the  land  "  is  not  allo- 
dial, and  where  the  landlord  is  entitled  to  the  reversion  and 
to  a  rent,  he  is  authorized  to  distrain  for  rent."  This 
clearly  implied,  that  where  lands  were  allodial,  even  the 
reversioner  could  not  distrain  for  rent.  The  Revisers  say, 
that  the  Chief  Justice  made  that  remark  with  great  reason. 
Accordingly  they  proposed  the  4th  section.  The  intention 
was,  not  to  introduce  a  new  kind  of  relationship  of  landlord 
and  tenant :  not  to  create  a  new  kind  of  rent  independent 
of  any  reversion.  Such  a  construction  would  be  absurd, 
because  it  would  annul  the  section  immediately  preceding. 
One  would  make  the  lands  allodial  and  the  other  feudal. 

The  purpose  was,  to  allow  parties,  who  leased  for  life  or 
years,  to  reserve  rents  and  services  certain,  which  they 
could  not  have  done,  without  this  saving  section.  The  re- 
visers clearly  so  explained  this  section  in  their  note,  saying 
"  that  all  lands  should  be  subject  to  the  rent  and  services 
which  have  heretofore  obtained  among  our  citizens,  and 
the  rights  annexed  thereto  by  the  common  law."  Judge 


116 


Gould  quotes  that  remark  of  the  Kevisers,  as  evidence  that 
they  meant  to  subject  all  lands  to  feudal  burdens,  even 
when  no  tenure  existed  or  could  exist  between  the  grantor 
and  grantee.    His  associates  fell  into  the  same  error. 

The  remark  quoted  by  Judge  Gould  plainly  teaches 
directly  the  opposite  of  what  he  understood.  But  one 
kind  of  rent  is  referred  to,  or  is  known,  and  but  one  clearly 
meant.  Hence  the  question  arises,  what  was  the  rent  and 
services  which,  before  the  revision,  had  obtained  among 
our  citizens  1  There  can  be  but  one  answer.  Rent  was 
then  understood,  as  now,  as  a  render,  a  return,  a  payment 
in  money  or  otherwise,  as  a  compensation,  for  the  use  and 
possession  of  another's  land,  and  not  as  the  purchase  price 
upon  vendition. 

In  speaking  of  "  the  rights  annexed  thereto  by  the  com- 
mon law,"  the  revisers  clearly  and  unmistakably  indicated, 
that  they  had  in  view  the  common  law  rent,  and  no  other. 
Such  a  rent,  as  heretofore  shown,  exists  only  as  between 
landlord  and  tenant,  and  as  the  incident  of  a  reversion. 
Where  the  party,  to  whom  it  is  reserved,  has  no  reversion, 
it  is  not  rent,  whatever  it  may  be  named  in  the  deed  or 
contract. 

It  is  admitted  that  the  grantor  of  the  deeds  in  question, 
did  not  have  the  reversion.  He  had  merely  the  covenant. 
The  language  of  the  opinions  upon  this  point  will  be  found 
in  the  fourth  number  of  this  review.  The  grantees  were 
the  absolute  owners.  They  held  the  fee,  the  reversion  of 
which  was  in  the  State.  The  payment  provided  for,  was, 
therefore,  not  rent,  but  consideration  money  upon  bargain 
and  sale.  According  to  their  own  argument,  the  grantor 
had  no  property  left  in  the  lands.  He  never  had  but  a 
tenancy  in  fee  and  that  he  sold  and  conveyed.  He  held  no 
relation  to  the  premises  granted,  nor  to  the  several  gran- 
tees, different  from  any  vendor,  who  has  executed  a  deed 
in  fee,  and  taken  therefor,  covenants  or  obligations  for  the 
consideration  money.    The  number  of  installments  named 


117 


could  not  vary  the  question.  It  mattered  not,  whether 
they  were  ten,  twenty,  or  extended  to  years  without  limit. 
The  -party,  who  sells  his  farm,  providing  payment  in  ten 
annual  installments,  calling  Lthem  rent,  is  just  as  much  a 
landlord,  and  his  covenants  just  as  well  run  with  the  land, 
as  in  the  cases  under  discussion.  If  the  purchaser  sells 
before  he  has  made  his  payments,  his  vendee  is  as  much 
bound  to  pay  his  covenants,  as  in  these  cases.  There  is 
no  part  of  the  argument  of  either  of  the  opinions,  which 
does  not  apply,  as  well  to  one  case,  as  the  other.  Call  the 
parties  lessor  and  lessee,  and  then  Judge  Gould's  logical 
formula  works  out  the  same  result.  This  is  his  reasoning  : 
"  No  one  will  pretend  that  in  the  usual  and  popular  sense, 
there  is  any  doubt  that  any  lessor  is  a  landlord,  and  any 
lessee  a  tenant ;  or  that  rent  is  paid  by  a  tenant  and  re- 
ceived by  a  landlord."  Ergo,  the  plaintiff  is  entitled  to 
recover.    Quod  erat  demonstrandum. 

Take  another  extract  from  the  leading  opinion  :    "  It 
would  seem  entirely  reasonable  to  resort  to  the  old  test,  of 
whether  the  covenant  has  been  accompanied  by  a  con- 
veyance.   If  it  has,  it  would  be  only  fair  that  the  assignee 
should  continue  #to  perform  that,  which  must  be  seen  to 
have  been  part  of  the  price  of  his  land,  and  without  which 
this  very  land  would  not  have  been  transmitted  from  the 
covenantee  (original  grantor)  through  the  lessee  or  grantee 
to  the  assignee  himself.    The  land  which  he  holds,  is  the 
consideration  he  has  received  for  his  contract  or  burden. 
Where  there  is  no  such  accompanying  conveyance,  the 
consideration  of  the  covenant  is  necessarily  foreign  to  the 
land  ;  and  the  title  of  the  covenantor  is  independant  of  the 
stipulations  of  the  covenant  ;  and  as  these  relations,  and 
all  other  relations  which  are  indicated  by  the  technical 
phrase,  "  privity  of  estate,7;  are  absent ;  there  is  no  reason 
why  the  assignee  should  be  bound  by  the  covenant.  But 
where  there  is  such  accompanying  conve3Tance,  no  future 
party  has  a  right  to  complain  of  any  lawful  burden  atten- 
dant upon  it,  whether  of  covenant  or  condition  ;  since  inde. 


118 


pendent  of  the  conveyance,  neither  estate  nor  burden  could 
ever  have  reached  him." 

It  will  be  thus  seen,  that  the  rule  of  the  cases,  under  re- 
view is,  that  covenants  or  obligations,  for  purchase  money, 
run  with  the  land.  Every  owner  of  real  estate  is  bound  to 
pay  the  purchase  money  debts  of  all  preceding  owners,  and 
perform  all  conditions  entered  into  by  any  of  them.  If 
they  fail  to  pay  upon  a  fifteen  day's  notice,  they  forfeit 
their  premises.  It  is  only  necessary  to  call  the  purchase 
money  rent,  and  then  Judge  Wright  says,  speaking  of  a 
grantor  and  grantee  in  fee,  "  I  cannot  see  how  they  are  to 
be  treated  and  considered  only  as  vendor  and  vendee  of  the 
lands,  between  whom  confessedly  there  would  be  no  privity, 
or  any  interest  or  estate  left  in  the  grantor,  whereby  con- 
ditions might  be  imposed,  or  the  burden  of  covenants  at- 
tached to  the  land." 

Judge  Harris  adds,  ce-  I  concur  in  that  opinion." 

The  truth  is  evident.  The  three  judges  did  not  know 
what  rent  was.  They  supposed  it  nothing  but  a  w^rd.  If 
that  word  had  been  omitted  from  the  deed,  they  admit  the 
cases  would  be  entirely  altered.  It  seems  not  to  have  oc- 
curred to  them,  that  they  were  making  the  statute  save, 
what  never  existed.  They  overlook  the  fact,  that  the 
fourth  section  saves  rents  and  services,  but  does  not  pretend 
to  create.  Before  that  section  can  be  made  to  operate,  there 
must  be  rents  created — that  is  common  law  rents— inci- 
dents of  the  reversion,  renditions  for  the  possession  of  the 
lands  to  be  made  to  the  owners ;  then  the  statute  has 
something  to  save.  Upon  leases  for  lives  and  years,  there 
is  tenure  ;  and  if  rents  be  reserved,  they  are  incidents  of 
the  reversion,  and  saved  from  the  general  abolition  of  all 
feudal  incidents,  by  the  4th  section.  In  the  cases,  under 
review,  there  is  no  pretence  that  there  was  any  rent  cre- 
ated, independent  of  the  statute.  They  admit  there  was 
none.  Tbey  do  not  claim  the  4th  section  to  be  a  creating, 
but  only  a  saving  section.  How  then  do  they  save  that 
which  did  not  exist  ? 


Number  XIII. 


The  argument  of  the  opinions  founded  upon  the  Statutes  enacted  since  1787. 
Decision  of  the  Court  of  Appeals  upon  the  same  statutes  —  The  same 
argument  presented  to  that  court  by  counsel  and  condemned  by  the  court, 
as  is  now  adopted  in  the  decisions  under  review  —  Our  Statutes  copies  of 
English  Statutes  —  32  Hen.,  8  —  Our  Statute  of  1788  —  Their  purpose  and 
effect  —  The  argument  as  to  grantees  of  reversions  —  A  strange  hallucina- 
tion—  The  fallacy  of  their  reasoning  exposed — They  admit  that  the  sta- 
tute of  1788,  as  to  grantees  of  reversions,  would  not  enable  the  plaintiffs 
to  recover  —  but  rely  upon  the  Statute  of  1805  —  The  folly  and  enormity 
of  that  position 

The  argument  in  these  cases,  founded  upon  the  several 
statutes  enacted  since  1787,  exclusive  of  the  section  of  the 
Revised  Statutes  which  has  been  examined  in  the  preceeding 
number,  remains  to  be  noticed.  Of  all  the  other  statutes, 
as  of  the  5th  section  of  the  Statute  of  1787,  the  remark  is 
equally  true,  that  they  were  presented  to  the  consideration 
of  the  Court  of  Appeals,  and  received  the  particular  atten- 
tion of  that  court.  It  is  equally  true  of  the  others  as  of 
the  5th  section,  that  they  are  copies  of  English  Statutes, 
and  that  the  Court  of  Appeals  declined  to  assign  to  them 
different  effects,  in  the  economy  of  our  laws,  from  those 
wherewith  they  have  been  accredited  in  England. 

In  the  De  Peyster  case,  the  same  statutory  argument  was 
made  by  counsel  for  plaintiff.  It  was  not  repeated  by  the 
counsel  in  these  cases,  but  is  repeated  by  the  three  Judges, 
and  substantially  copied  in  their  opinions.  As  reported 
in  2  Selden,  pp.  480,  481,  plaintiff's  counsel  used  the  follow- 
ing language  : 

"  The  rent  in  this  case  is  a  fee  farm  rent,  of  at  least  one- 
quarter  the  annual  value  of  the  lands,  at  the  time  of  its  re- 


120 


servation,  which  Blackstone  calls  '  letting  lands  to  farm  in 
fee  simple,  instead  of  the  usual  method  for  life  or  years.' 
The  existence  and  legality  of  such  rents  are  recognized  by 
various  statutes.  (1  R.  L.,  86,  §  20  ;  id.,  438,  439,  §§  1,  2;) 
and  the  same  remedies  by  6  entry '  and  otherwise,  are  given 
to  grantors  and  1  lessors  in  fee/  and  their  assigns,  as  to  gran- 
tors and  lessors  for  life  or  years.  (Id.,  §  3  ;  1  R.  S.,  747  ;  §§ 
18,  23,  24,  25.)  From  the  terms  of  the  act  of  April  9,  1805, 
(29  Sess.,  ch.  98,)  explanatory  of  the  act  of  February  6, 
1788,  it  is  manifest  that  the  legislature  supposed  that  the 
lessor  c  in  fee '  had,  by  virtue  of  a  reservation  of  rent  with 
a  right  of  distress  and  entry  for  non-payment,  if  not  techni- 
cally 'a  reversion,'  an  'estate'  or  'interest  in'  the  lands 
equivalent  to  a  reversion  dependent  upon  an  estate  for  life." 

This  is  the  argument  adopted  by  the  three  Judges,  and 
the  same  argument  which  Chief  Justice  Ruggles  pronounced 
"  an  attempt  to  introduce  a  new  reason  never  before  regard- 
ed as  sufficient  for  supporting  the  condition."  It-  was  in 
connection  with  those  statutes  and  the  argument  based 
thereupon  that  the  Chief  Justice  said,  "  The  rent,  and  the 
right  to  re-enter  for  non-payment  are  not  reversionary, 
whatever  they  may  be  called  in  the  lease  ;  and  it  is  not 
enough  to  say  that  they  resemble  or  are  analagous  to  such 
interests."  It  was  in  the  same  connection  he  said,  "  There 
is  no  legal  equivalent  for  a  reversion." 

Now  the  same  Statutes  and  precisely  the  same  argument 
are  taken  by  these  Judges  to  justify  their  decisions. 
They  assert  that  the  reservation  of  rent  and  the  cove- 
nants to  pay  the  same  are  made  by  these  statutes  "  pro 
hac  vice  equivalent  to  a  reversion."  The  Court  of  Appeals 
upon  the  same  point,  distinctly  and  expressly  declare  that 
such  reservation  and  such  covenants  are  not  made  by  these 
statutes  equivalent  to  a  reversion. 

Let  us  examine  in  detail  that  part  of  the  argument  which 
is  professedly  founded  upon  the  several  statutes  not  yet  par- 
ticularly noticed  in  this  review. 


121 


Their  second  position  is,  that  if  the  first  section  of  the 
act  concerning  tenures  was  not  despoiled  of  its  legitimate 
effects  by  the  5th  section  of  the  same  act,  that  result  was 
produced  by  the  act  of  1788,  entitled  an  act  to  enable  gran- 
tees of  reversions  to  take  advantage  of  the  conditions  to  be 
performed  by  lessees.  That  statute  originally  consisted  of 
two  sections.  The  first  section  empowered  grantees  of  re- 
versions to  take  advantage  of  conditions  affixed  to  the  ten- 
ancy. The  second  provided  that  lessees  and  their  executors, 
administrators  and  assigns  might  have  the  like  remedy 
against  the  grantees  of  the  reversions  as  they  might  have 
had  against  their  grantors.  These  two  sections  were  copied 
from  an  English  Statute,  referred  to  ordinarily  as  32  Hen., 
VIII.,  oh.  34.  They  are  to  be  found  1  R.  L.,  363,  and  1  R. 
S.,  747.)  They  were  pronounced  but  a  re-enactment  of  the 
English  Statute,  in  3  Denio,  299,  and  2  Kernan,  302.  It 
has  never  before  been  pretended  otherwise.  The  English 
Statute  was  enacted  in  1540,  and  has  ever  since  remained 
in  force.  It  has  never  been  held  or  even  claimed  to  have 
had  any  effect  upon  the  Statute  quia  emptores,  or  upon  any 
grant  in  fee  made  under  that  Statute.  It  has  had  nothing 
to  do  with  attaching  covenants  or  conditions  to  land.  It 
was  enacted  for  no  such  purpose.  The  object  was  to 
enable  the  grantees  of  lands  to  maintain  actions  in  their 
own  names  upon  covenants  and  conditions  which  had  been 
made  to  previous  owners  as  reversioners  of  some  certain 
tenancy.  That  was  the  purpose  of  the  first  section.  The 
second  section  gave  to  the  tenant  a  similar  right  against  all 
succeeding  grantees  of  the  reversion  to  enforce  all  cove- 
nants of  the  lease  made  on  the  part  of  the  lessor. 

For  example,  suppose  A  had  leased  premises  to  B  for 
ten  years,  reserving  an  annual  rent,  and  before  the  rent 
became  due,  had  sold  and  conveyed  the  premises  to  C. 
The  latter,  as  the  grantee  of  the  reversion,  could  have 
maintained  an  action  for  the  rent  against  B,  by  virtue  of 
the  statute.  It  did  not,  however,  give  or  create  the  right 
16 


122 


of  action,  it  merely  provided  for  its  transfer  or  assignment. 

The  grantee  of  the  reversion  took  no  greater  rights  than 
his  grantor  had. 

Again,  for  an  example  to  which  the  second  section  would 
apply.  If  A  in  his  lease  to  B  had  made  covenants  of  war- 
ranty and  of  quiet  enjoyment,  and  there  had  been  a  breach 
thereof  after  the  conveyance  to  C,  the  latter  would  have 
been  liable  thereupon  at  the  suit  of  B,  or  of  any  one  holding 
the  ten  years  lease  as  his  assignee.  Here  again,  it  was  not 
the  statute  which  created  the  liability.  That  had  been 
fixed  by  the  common  law. 

Such  were  the  purposes  and  effects  of  32  Hen.  8,  and  also 
of  the  re-enactment  here  of  the  same  statute.  In  the  De 
Peyster  case,  Ruggles,  C.  J.,  said,  in  speaking  thereof  : 
Si  But  the  statute  only  authorised  the  transfer  of  the  right, 
and  did  not  convert  it  into  a  reversionary  interest,  nor  into 
any  other  estate." 

It  is  obvious  that  it  neither  gave,  nor  pretended  to  give, 
to  any  one,  a  new  estate,  or  an  interest  of  a  real  estate 
character.  It  did  not  apply  to  parties  having  no  reversion 
and  no  estate.  If  a  grantor  in  fee  before,  or  without  the 
statute,  had  no  estate  left,  he  had  none  after  or  with  the 
statute.  And  on  the  other  hand,  it  neither  diminished  nor 
pretended  to  diminish,  the  estate  of  the  grantee  while  in 
him,  or  after  passing  to  his  assignee.  It  is  alike  obvious, 
that  it  neither  changed  nor  pretended  to  change,  personal 
to  real  covenants,  or  in  any  manner  to  enlarge  or  diminish 
their  obligations. 

There  is  no  pretence  made  that  the  statute  of  1788, 
differed  from  32  Hen.  8  ;  or  that  in  England,  or  according 
to  English  laws,  the  statute  in  question  could  have  aided  to 
maintain  these  or  similar  actions.  The  contrary  is  express- 
ly admitted.    Judge  Gould  remarks  of  it — 

"  Under  the  provisions  of  this  statute  and  the  common 
law  as  thereby  modified,  have  been  had  the  decisions  of  the 
English  Courts  which  are  claimed  to  control  our  action." 


123 


He  then  admits  the  English  decisions  to  be  in  favor  of 
the  defence,  but  declares  them  unjust  and  productive  of 
unrighteous  results.  The  American  decisions  are  conceded 
to  be  of  the  same  character,  and  are  subjected  by  him  to 
like  denunciation.  A  new  real  estate  era  is  to  distinguish 
the  Supreme  Court  of  the  3d  Judicial  District.  The  feudal 
system  without  feudal  tenures  is  proclaimed  the  law  of  the 
State,  and  the  Court  of  Appeals  are  admonished  to  retrace 
their  steps  and  fall  into  line,  even  if  they  have  to  strain  a 
little  to  do  so.  Allodial  estates  and  feudal,  are  alike  con- 
demned, and  in  their  place  a  hybrid  system,  a  cross  between 
the  two,  with  all  the  evils  of  both,  and  the  good  features  of 
neither,  is  to  be  substituted. 

No  part  of  the  reasoning  of  these  Judges,  in  support  of 
their  strange  decision,  is  more  unnacountable  than  the  use 
which  they  undertake  to  make  of  our  statute  in  regard  to 
grantees  of  reversions.    The  question  before  them  was,  had 
the  grantor  Stephen  Van  Rensselaer,  after  executing  the 
deeds,  the  reversion  of  the  fee  left  in  himself?    Could  he, 
in  his  life  time,  have  maintained  these  actions  ?    No  question 
was  made  but  that  the  plaintiffs  had  all  the  rights  of  actions 
of  the  grantor.    If  the  grantor  had  the  reversion,  the  plain- 
tiffs were  the  grantees  of  the  reversion,  and  by  force  of  the 
statute  could  maintain  the  action  in  their  own  names.    If  he 
had  not  the  reversion  they  certainly  could  not  be  the  gran- 
tees thereof,  and  had  no  cause  of  action  ;  and  they  claim 
none  in  any  other  character.    They  therefore  preclude  any 
aid  from  that  statute  when  they  admit  that  the  grantor  did 
not  have  the  reversion,  and  that  the  plaintiffs  have  nothing 
of  the  kind.    Holding  as  they  did,  and  admitting  what  they 
did,  it  was  a  strange  hallucination  which  led  these  judges  to 
suppose  that  the  statute,  as  to  grantees  of  reversions,  had 
any  bearing  upon  the  question  in  dispute  before  them. 

Let  us  illustrate  their  reasoning.  A  sells  and  conveys  in 
fee  his  premises  to  B  ;  B  covenants  to  pay  therefor  a  certain 
sum  in  annual  installments.    Before  they  all  become  due,  B 


124 


sells  and  conveys  the  same  premises  to  C.  A  also  assigns 
his  purchase  money  covenants  to  D.  Some  of  the  covenants 
becoming  due  after  D  becomes  the  assignee,  and  after  C  has 
become  the  owner  of  the  premises ;  D  sues  C,  putting  his 
right  to  recover  on  the  ground  that  the  covenants  run  with 
the  land  in  favor  of  the  assignee  thereof,  and  that  the  de- 
fendant, as  the  owner  of  the  land,  is  personally  liable  to  pay 
them.  Or  C  serves  a  notice  that,  if  payment  is  not  made 
within  fifteen  days  after  the  time  of  service,  he  will  re-enter  ; 
and  default  occurring,  brings  ejectment. 

Such  is  precisely  the  case,  whereupon  the  court  passed  in 
favor  of  recovery  in  both  forms  of  action.  They  say  it  is 
true  that  A  and  B  would  have  been  merely  vendor  and  ven" 
dee,  wherein  the  covenants  would  not  have  run  with  the 
land,  but  for  our  statutes  allowing  grantees  of  reversions  the 
same  right  which  their  grantor  would  have  had  if  he  had 
made  no  transfer.  Judge  Wright  says  :  "  I  cannot  see  how 
they  are  to  be  treated  and  considered  only  as  vendor  and 
vendee  of  the  lands,  between  whom  confessedly  there  would 
be  no  privity,  or  any  interest  or  estate  left  in  the  grantor 
whereby  conditions  might  be  imposed  or  the  burden  of 
covenants  attached  to  the  land."  Judge  Harris  concurs 
therein.  The  chief  reason  or  ground  upon  which  they 
agree  in  support  of  the  idea  is,  the  statute  enabling  gran- 
tees of  reversions  to  bring  actions  in  their  own  names,  and 
which  they  concede  to  be  merely  the  re-enactment  of  32 
Hen.  8.  This  is  the  mode  of  their  logic.  While  the  pur- 
chase money  covenants  were  held  by  the  vendor  and  coven- 
antee, they  were  personal  only,  and  not  a  burden  upon  the 
lands,  or  a  personal  demand  against  any  party  except  the 
covenantor,  for  the  reason  that  the  vendor  and  covenantee 
was  not  the  owner  of  the  reversion.  But  when  the  grantor 
and  covenantee  assigned  his  purchase  money  covenants,  they 
became  in  the  hands  of  the  assignee  real  covenants  and  a 
burden  upon  the  land,  for  the  reason,  as  they  allege,  that  by 
the  act  of  1788  grantees  of  reversions  have  all  the  rights 


125 


and  all  the  remedies  to  enforce  those  rights,  which  their 
grantor  might  have  had,  if  such  reversion  had  remained  in 
him. 

The  fallacy  of  their  reasoning  will  be  more  apparent  when 
expressed  in  something  like  syllogistic  form. 

Every  grantee  of  a  reversion  has  the  same  rights  of  ac- 
tion which  the  grantor  would  have  had  in  case  the  reversion 
had  remained  in  him. 

The  plaintiffs  are  severally  grantees  of  the  reversion. 
Therefore  they  can  maintain  these  actions. 

The  defect  of  their  reasoning  is,  that  the  minor  proposi- 
tion contains  a  double  fallacy-  It  asserts  the  plaintiffs  to 
be  the  grantees  of  the  reversion,  which  is  fallacy  number 
one.  That  assertion  necessarily  presumes  that  the  grantor, 
before  his  assignment,  was  the  owner  of  the  reversion, 
which  is  fallacy  number  two. 

It  is  true,  they  admit  that  the  grantor  was  not  the 
owner  of  the  reversion,  which  is,  in  effect,  an  admission  of 
both  fallacies. 

But  after  making  the  statute  of  1788  produce  such  re- 
sults, they  exhibit  another  of  the  freaks  which  characterise 
the  opinions.  T^iey  then  admit  that  the  act  of  1788  did 
not  apply  to  grants  in  fee,  and  did  not  therefore  apply  to 
the  cases  before  them.  They'say,  "  In  1805  it  was  doubted 
whether  these  provisions  extended  to  any  but  assignees  of 
reversions  dependent  on  estates  for  life  or  years."  They 
thus  virtually  admit  their  reasoning,  based  upon  that 
statute,  to  have  been  only  an  experiment,  just  by  way  of 
displaying  dexterity  in  logical  evolutions,  as  children  exer- 
cise their  ingenuity  in  erecting  toy  houses,  only  to  tumble 
them  down  as  soon  as  completed. 

Having  denied  that  the  defence  was  good  under  the 
statute  quia  emptores,  and  then  admitted  that  it  was,  both 
by  authority  and  upon  principle  ;  having  asserted  that  the 
statute  of  1783  destroys  the  effect  of  the  first  section  of 
the  statute  concerning  tenures  of  1787,  and  then  admitted 


126 


that  it  did  not  apply  to  that  section  at  all,  these  Judges 
discover  in  the  statute  of  1805,  provisions  upon  which  they 
can  securely  rely,  as  they  allege,  to  sustain  the  actions. 
As  the  cases  are  made  to  turn  upon  that  statute,  it  may  be 
well  to  present  a  copy  thereof. 

As  hereinbefore  stated,  the  statute  of  1788  had  two  sec- 
tions, one  providing  in  favor  of  grantees  of  reversions,  and 
one  against  them.  The  section  added  thereto  in  1805  was 
as  follows  : 

Be  it  enacted,  &c,  "  That  all  the  provisions  of  this  act, 
and  the  remedies  hereby  given,  shall  be  construed  to  ex- 
tend as  well  to  grants  or  leases  in  fee,  reserving  rents  as 
to  leases  for  life  and  years,  any  law  usage  or  custom  to"  the 
contrary  thereof  notwithstanding." 

This  was  made  the  third  section  of  I  K  L  363 — 1813 — 
and  the  twenty-fifth  section  of  I  R.  S.  747—1830.  The 
twenty-third  and  twenty-fourth  sections  of  the  Revised 
Statutes  are  the  first  and  second  sections  of  the  Revised 
Laws.  The  two  sections  relied  upon  to  divest  tho  owners 
of  lands  of  their  rights  therein  and  invest  strangers  there- 
with, are  more  concisely  expressed  in  the  Revised  Statutes. 

I  R.  S.  747,  §  23,  is  as  follows  : 

"  The  grantees  of  any  demised  lands,  tenements,  rents  or 
hereditaments,  or  of  the  reversions,  the  assignees  of  the 
lessor  of  any  demise,  and  the  heirs  and  personal  represen- 
tatives of  the  lessor,  grantee  or  assignee,  shall  have  the 
same  remedies  by  entry,  action  or  otherwise,  for  the  non- 
performance of  any  agreement  contained  in  the  lease  so 
assigned,  or  for  the  recovery  of  any  rent,  or  for  the  doing 
of  any  waste,  or  other  cause  of  forfeiture,  as  their  grantor 
or  lessor  had,  or  might  have  had,  if  such  reversion  had  re- 
mained in  such  lessor  or  grantor." 

Then  follows  a  section  making  grantees  of  reversions 
liable  in  the  same  manner  as  their  grantors  would  have 
been.  Then  §  25.  "  The  provisions  of  the  two  last  sec- 
tions shall  extend  as  well  to  grants  or  leases  in  fee  reserv- 
ing rents  as  to  leases  for  life  and  for  years." 


127 


This  §  25,  which  was  the  §  3  of  the  Revised  Laws,  is 
spoken  of  by  Judge  Gould  as  follows  : 

"  Section  3,  is,  however,  of  the  last  consequence,  in  the 
cases  before  us." 

Let  us  now  recapitulate  some  of  the  positions  of  the  ar- 
gument of  the  Judges,  and  see  what  the  particular  point  is, 
as  based  upon  the  section  of  1805.  It  is  admitted  that  the 
deeds  passed  all  the  estate  of  the  grantor,  that  the  rever- 
sion was  in  the  State,  that  the  covenants  and  conditions  in 
question  were  not  incidents  of  the  reversion,  and  did  not 
therefore  attach  to  the  lands  previous  to  the  Statute  of 
1805.  Up  to  that  time,  the  grantees  were  absolute  own- 
ers, and  their  estate  or  land  was  free  from  the  burden  of 
the  covenants  and  conditions  specified  in  the  deeds.  Up  to 
that  time,  the  grantor  was  no  more  than  a  vendor,  and  his 
covenants  were  only  the  consideration  price  of  the  lands 
sold.  He  could  maintain  an  action  against  the  covenantor, 
but  against  no  other  or  third  party.  Even  after  the  Sta- 
tute, the  covenants  did  not  become  real  convenants  while 
the  covenantee  remained  the  owner  thereof.  It  is  not  pre- 
tended that  he  could  have  maintained  either  of  these  ac- 
tions. But  as  so<5n  as  he  assigned,  the  covenants  are  de- 
clared to  have  become  real. 

They  became  a  burden  upon  the  land  by  the  assignment. 
The  imposition  is  alleged  to  have  resulted  from  the  Statute 
of  1805,  which  is  now  the  25th  section  of  the  Revised  Sta- 
tutes. It  is  not  claimed  that  that  statute  vested  in  the 
assignee  of  the  covenants  the  reversion,  or  any  estate  or 
interest  in  the  land  ;  but  that  it  gave  to  the  assignee  the 
same  rights  of  action  as  though  his  assignor  had  been  the 
owner  of  the  reversion,  and  himself,  the  grantee  of  that  re- 
version. The  Judges  construe  the  statute  to  mean  that  the 
assignee  of  the  covenantee  shall  have  the  same  remedies,  as 
though  his  assignor  had  owned  the  reversion  and  granted  it 
to  his  assignee.  There  they  found  their  agrarian  doctrine, 
that  he  who  does  not  own  lands,  and  he  who  does,  are  placed 
upon  the  same  footing  by  our  statutes. 


128 


It  is  not  pretended  that  the  plaintiffs  are  grantees  of  the 
reversion,  or  owners  of  any  estate  or  interest  in  the  land. 
It  is  made  the  strong  point  in  their  favor,  that  they  have 
no  estate  in  the  premises.  To  deny  their  demands,  is  de- 
nounced more  unrighteous  than  it  was  in  the  case  of  Webb 
v.  Russell,  because  the  plaintiff  *in  that  case  owned  the 
lands,  and  in  these  cases  the  plaintiffs  do  not  own  them. 
Judge  Wright  holds  expressly  that  the  Statute  of  1805  was 
enacted  to  constitute  Stephen  Yan  Rensselaer  the  landlord 
in  all  the  cases,  where,  by  making  deeds  in  fee,  he  had 
parted  with  all  his  estate  in  the  premises.  Judge  Harris 
has  expressly  concurred  therein,  They  say  it  was  designed 
to  place  his  assignees  on  the  same  footing  as  though,  instead 
of  a  deed  in  fee,  he  had  made  a  lease  for  life  or  years. 
This  is  the  idea.  Yan  Rensselaer  had  granted  most  of  his 
lands  in  fee,  and,  for  the  consideration  price,  had  received 
covenants  to  pay  a  certain  sum  annually.  These  payments 
had  been  called  rent. 

It  was  found  in  1805  that  the  covenants  did  not  run  with 
the  land,  because  the  covenantee  had  not  the  reversion,  and 
was  not  therefore  a  landlord,  and  his  payments  were  not 
therefore  rent.  But  a  manor  could  not  exist  without  a  lord, 
and  the  lord  of  a  manor  would  make  a  poor  figure  without 
land.  To  help  Yan  Rensselaer  out  of  the  category  in  which 
he  had  placed  himself  by  selling  his  lands,  instead  of  renting 
them,  and  to  restore  him  to  the  honors  of  his  lordship,  as 
well  as  the  profits,  the  Legislature  of  1805  are  charged  with 
having  added  to  our  laws  what  is  now  section  25  of  I  R.  S., 
747.  The  basis  of  the  theory  is,  that  it  was  foreseen,  that 
by  reason  of  the  death,  removal  or  inability  of  the  covenan- 
tors, these  covenants  must  in  no  long  period  of  time  prove 
worthless,  unless  third  parties,  strangers  to  the  contract, 
could  be  made  by  ex  'post  facto  legislation,  personally  respon- 
sible for  their  fulfillment.  The  covenantors  and  their  pro- 
perty might  hold  out  during  the  life  time  of  the  covenantee } 
and  therefore  no  provision  was  made  in  his  favor,  while  he 


129 


remained  the  owner  of  the  covenants.  But  for  his  assignees 
and  his  hereditary  offspring,  the  legislature  of  1805  are 
charged  with  having  imposed  upon  the  owners  of  lands,  the 
personal  liability  of  paying  the  purchase  money  covenants 
of  Van  Rensselaer's  vendees.  Every  generation  of  owners, 
ages  without  end,  were  to  continue  subject  to  the  imposi- 
tion. 

If  the  three  Judges  be  right  in  this  construction,  the 
Legislature  of  1805  were  never  equalled  in  that  kind  of  be- 
nevolence, which  robs  one  man  to  give  to  another,  and  pil- 
fers from  honest  industry  the  means  to  pamper  worthless 
prodigality.  It  is  not  remarkable  that  more  than  half  a 
century  should  elapse  before  a  court  could  be  found  fitted 
to  appreciate  such  a  policy,  and  attempt  to  breathe  into  it 
the  breath  of  life. 


17 


Number  XIV. 


Further  discussion  of  the  argument  of  the  Judges  as  based  upon  the  act  of 
1805  —  They  make  it  a  confiscating  statute  —  It  was  a  forced  construction 
—  The  reason  or  cause  of  the  statute  of  1805  —  Authorities  adverse  to 
their  decision  upon  this  point  —  17  Wen.  152  ;  5  Denio  477  ;  2  Selden 
467  —  The  material  of  the  judicial  argument  is  made  up  of  a  misuse  of  the 
words  lease,  lessor,  lessee,  &c. 

The  point  of  the  decisions  based  upon  the  statute  of 
1805,  is  expressed  by  Judge  Gould  as  follows : 

"  Fourthly  :  applying  an  act,  enabling  grantees  of  rever- 
sions to  hold  certain  rights  and  enforce  certain  remedies 
by  reason  of  being  assignees  of  reversions  ;  it  of  necessity 
makes  the  lessor's  interest  in  such  a  lease — as  well  in  his 
own  hands,  as  in  those  of  his  assignees — pro  hac  vice  equi- 
valent to  a  reversion.  Fifthly  :  being  subsequent  (as  was 
the  act  it  amended)  to  the  law  concerning  tenures,  it  is,  if, 
and  so  far  as,  repugnant  to  the  law,  a  repealing  act,  even 
without  the  express  words, '  any  law,'  &c." 

Judges  Wright  and  Harris  say  the  same  thing  in  almost 
the  same  words.  Referring  to  the  statute  of  1805,  their 
language  is,  u  The  effect  would  seem  to  have  been  to  make 
the  grantor's  or  lessor's  interest  in  the  grant,  pro  hac  vice, 
equivalent  to  a  reversion." 

It  is  thus  made  clear,  that  the  three  Judges  give  to  the 
statute  a  twofold  effect.  First :  They  construe  it  to  have 
been  a  confiscating  statute,  in  so  far  as  it  took  away  indi- 
vidual property.  That  was  its  ex  post  facto  effect.  Second : 
It  changed  the  allodial  system  of  tenures  to  the  feudal 
throughout  the  State.    That  was  its  prospective  effect. 


131 


As  to  the  first,  the  decisions  are  remarkable,  not  only 
for  their  monstrous  wrongs,  but  as  being  the  first  judg- 
ments ever  rendered  by  any  Court  despoiling  one  indi- 
vidual of  his  property  in  order  to  bestow,  it  upon  another. 
The  history  of  the  world  furnishes  no  parallel.  Property 
has  been  confiscated  for  alleged  crimes  to  the  sovereign 
power  where  it  was  located  ;  but  never  before  has  there 
been  a  judgment  directly  transferring  the  property  of  one 
individual  to  another  by  the  simple  fiat  of  authority. 

If  it  be  pretended  that  such  is  not  the  effect  of  the  judg- 
ment, let  us  see  how  they  are  to  escape  from  the  accusa- 
tion. Judges  Wright  and  Harris,  in  immediate  connection 
with  the  last  quotation  herein  before  made  from  their 
opinion,  say : 

w  The  people  of  the  State,  having  taken  the  escheat  of 
all  lands  to  themselves,  and  thereby  removed  the  common 
law  foundation  on  which  privity  of  estate  between  grantor 
in  fee  of  manor  lands  rested,  by  operation  of  subsequent 
statutes  that  privity  was  continued." 

By  continued,  they  obviously  meant  created.  It  would 
be  absurd  to  contend  that  a  privity  which  they  admit  did 
not  exist,  was  continued.  In  another  connection,  they 
truly  say,  "  The  escheat  was  originally  called  the  rever- 
sion. "  It  was  so  decided  in  the  De  Peyster  case.  The 
reversion  is  admitted  to  have  been  in  the  State.  It  is 
admitted  to  be  there  now.  That  the  fee  is  vested  in  the 
defendants,  is  a  material  fact  alleged  in  the  complaints. 
Now  will  Judge  Gould  or  either  of  his  associates,  tell  us 
what  other  property  than  the  fee  and  the  reversion  there- 
of, there  was  <or  could  be,  wherefrom  the  Legislature  could 
have  bestowed  an  estate  or  interest  in  the  lands  ?  A  re- 
version is  the  residue  of  an  estate,  left  after  granting  a 
particular  estate.  It  is  admitted  that  Van  Rensselaer  had 
no  reversion.  He  did  not  grant  a  particular  estate.  He  • 
only  assigned  a  particular  estate  which  he  held.  Conse- 
quently, there  was  no  property  or  estate  left  in  him,  after 


132 


executing  the  deeds  in  question.  Because  there  was  none, 
the  necessity  was  created  as  our  Judges  reason,  for  the 
statute  of  1805.  The  legislature  are  made  to  give  what 
the  grantor  did  not  before  have.  As  all  possible  estate  or 
property  which  could  exist  in  the  premises  was  before  dis- 
posed of  and  belonging  to  some  one,  what  they  gave  to 
one,  they  must  have  taken  from  another.  They  admit 
that  they  did  not  rob  the  State.  The  State  was  the  party 
owning  the  reversion,  and  admitted  to  be  now  the  owner 
thereof.  It  follows,  therefore,  of  necessity,  that  whatever 
was  given  to  Yan  Rensselaer  by  the  act  of  1805,  was 
taken  from  the  tenants  in  fee  of  the  State,  the  defendants 
in  these  actions,  or  those  through  whom  they  have  ob- 
tained their  estates. 

Whether  legislation  which  deprives  one  party  of  his 
property  and  gives  it  to  another,  is  to  be  held  valid  and 
operative,  is  a  question  which  we  do  not  propose  to  dis- 
cuss. It  lies  beyond  a  war  of  words.  It  would  resolve 
society  into  its  original  elements,  making  the  law  of  might 
the  law  of  right,  and  leaving  its  discussion  to  other 
weapons  than  the  pen. 

Whether  the  statute  of  1805  attempted  to  do  what  is 
charged  by  the  three  Judges,  though  quite  as  absurd,  is 
not  of  the  same  desperate  character,  and  will  admit  of 
discussion  in  the  ordinary  mode. 

It  is  clear  that  it  does  not,  in  express  words,  produce 
either  of  the  effects  charged  to  it.  It  merely  extended 
certain  statutes  whereby  certain  demands  were  made 
assignable,  to  certain  other  demands  of  a  different  char- 
acter. It  did  not  pretend  to  change  their  quality,  but 
merely  to  allow  of  their  being  assigned,  so  that  the  assignee 
could  maintain  actions  thereupon  in  his  own  name. 

The  proximate  cause  of  its  enactment  was  a  decision  of 
the  Supreme  Court,  reported  2  John,  cases  p.  24.  The 
devisees  of  Van  Rensselaer  had  sued  the  executors  of 
Platner  upon  covenants  made  by  Platner,  of  the  same  kind 


133 


as  those  presented  in  the  cases  under  discussion.  That 
the  executors  were  liable,  equally  with  the  testator  while 
living,  was  not  denied.  The  action  was  held  not  to  be 
maintainable,  solely  upon  the  ground  that  the  covenants 
were  not  assignable.  The  point  of  the  decision  was,  that 
Yan  Rensselaer  having  no  reversion  and  not  being  a  les- 
sor, his  devisee  could  not  maintain  the  action  in  his  own 
name,  because  he  was  not  the  grantee  of  the  reversion, 
nor  the  assignee  of  a  lessor,  and  was  not  therefore  within 
the  provisions  of  the  statute  of  1788.  The  latter  statute 
made  assignable  only  such  covenants  as  were  real — that 
is,  such  as  were  incidents  of  the  reversion.  It  made  all 
such  assignable,  without  regard  to  the  time  or  duration  of 
the  lease.  The  covenants  in  the  Platner  case  were  per- 
sonal merely,  for  the  want  of  the  reversion  in  the  testator, 
who  was  both  the  grantor  and  covenantee.  In  order, 
therefore,  to  allow  the  assignee  to  maintain  actions  upon 
such  covenants  against  the  covenantor  and  his  personal 
representatives,  the  statute  of  1805  was  enacted.  It  merely 
provided  that  the  assignee  might  maintain  such  actions  as 
the  covenantee  could  have  maintained.  For  example,  in 
the  cases  under  review,  the  covenantee,  Stephen  Yan 
Rensselaer,  deceased,  could  in  his  life  time  have  maintain- 
ed actions  against  the  covenantors  and  their  personal 
representatives.  The  statute  enabled  the  assignee  to 
maintain  actions  against  the  same  parties.  It  was  not 
intended  to  change  personal  to  real  covenants,  much  less 
to  change  the  law  of  tenures.  That  it  repealed  the  first 
section  of  the  act  of  1787  concerning  tenures,  thereby 
restoring  or  introducing  the  feudal  law,  is  a  palpable  ab- 
surdity. 

The  Code  has  now  done  for  all  demands  what  the  Statute 
of  1788  did  for  rents,  and  what  the  act  of  1805  was  intended 
to  do  for  covenants  like  these  under  discussion.  That  is,  all 
demands  are  now  made  assignable.  The  assignee  not  only 
can,  but  must  bring  actions  in  his  own  name.    Section  23, 


134 


1  R.  S.,  747,  is  now  extended  generally.  If  extending  the 
provisions  of  that  section  to  one  class  of  demands  changed 
them  from  personal  to  real,  and  fastened  them  as  burdens 
upon  lands,  extending  the  same  provisions  generally  must 
have  had  a  like  effect  upon  all  personal  obligations  or  choses 
in  action.  The  same  mode  of  reasoning,  which  is  used  to 
work  out  the  result  in  the  one  case,  must  be  equally  potent 
for  the  other.  Judge  Gould,  indeed,  speaks  of  the  general 
change  of  the  rules  as  to  the  assignability  of  choses  in  ac- 
tion, as  having  had  a  material  effect  upon  the  question. 

As  a  matter  of  authority,  the  statutes  are  not  without  a 
settled  meaning  utterly  adverse  to  the  construction  of  the 
three  judges.  In  Norman  v.  Wells,  17  Wen.,  152,  Cowen,  J., 
passed  thereupon.  He  held  that  those  statutes  only  made 
certain  covenants  assignable  without  affecting  their  charac- 
ter. A  contrary  construction,  he  said,  "  would  confound  all 
distinction  between  covenants  real  and  personal,  and  fasten 
an  endless  number  and  variety  of  incumbrances  upon  lease- 
held  property." 

In  Yan  Rensselaer  vs.  Hayes,  5  Denio,  477,  executors 
sought  to  maintain  ejectment  for  non-performance  or  non- 
payment of  such  covenants.  It  was  contended  that  the  25th 
section  dispensed  with  the  necessity  for  the  reversion  in  the 
plaintiffs,  in  order  to  maintain  the  action,  by  putting  those 
who  owned  and  those  who  did  not  own  lands  on  the  same 
footing.  Judge  Parker,  at  the  circuit,  rejected  the  doctrine, 
holding  that  the  executors  could  not  maintain  ejectment  for 
want  of  the  reversion.  The  Supreme  Court,  upon  a  bill  of 
exceptions  made  by  the  plaintiffs,  affirmed  his  decision.  It 
being  now  established  as  the  law  that  the  grantor  had  no 
reversion,  and  that  the  plaintiffs  as  his  devisees  or  assignees 
have  none,  Yan  Rensselaer  v.  Hayes  is  as  conclusive 
against  the  plaintiffs  as  it  was  against  the  executors. 

No  doubt  the  three  judges  would  overrule  that  case. 
They  could  not  do  otherwise  and  sustain  the  "entity.''' 
The  executors  owned  the  covenants  and  were  thereby  lords 


135 


of  the  "entity,"  with  right  of  re-entry  and  ejectment,  if 
the  new  doctrine  be  good  for  anything, 

There  are  many  other  cases  in  the  books,  wherein  the 
same  statutes  have  been  construed  in  like  manner,  adverse- 
ly to  the  decisions  under  review.  There  has  been  no  pre- 
vious conflict.  No  statutes  have  more  frequently  been 
subjected  to  judicial  interpretation,  and  none  more  uni- 
formly understood.  It  was  not  necessary  to  go  beyond  the 
De  Peyster  case.  The  statutory  argument  of  the  three 
judges  was  in  that  case  distinctly  passed  upon.  The  lan- 
guage of  the  opinion  thereupon,  was  quoted  in  the  last 
preceding. number.  It  will  bear  repetition  in  this  connec- 
tion. In  treating  of  the  act  of  1805,  Judge  Ruggles  said  : 
But  the  statute  only  authorized  the  transfer  of  the  right, 
and  did  not  convert  it  into  a  reversionary  interest,  nor  into 
any  other  estate." 

Judge  Gould  cites  Yan  Rensselaer  vs.  Bradley,  3  Denio, 
140,  141.  It  does  nothing  toward  sustaining  his  position. 
It  was  there  assumed  that  the  plaintiff  had  the  reversion. 
The  court  declared  the  rent  to  be  the  common  law  rent 
service.  In  Van  Rensselaer  vs.  Chadwick,  24  Barb.,  333, 
Judge  Harris  said  of  that  decision,  as  had  been  previously 
said  in  the  De  Peyster  case,  that  the  rent  was  a  rent  charge, 
and  that  it  was  not  sustained  by  authority.  It  had  been 
erroneously  assumed  by  counsel  in  Yan  Rensselaer  vs. 
Bradley,  as  in  many  other  cases,  that  the  statute  quia 
emptores,  had  never  been  enacted  here. 

In  the  Chadwick  case,  Judge  Harris  declared  the  cove- 
nant to  be  a  rent  charge,  on  the  ground  that  the  grantor 
had  no  estate,  reversionary  or  otherwise,  left  in  the  pre- 
mises. He  had  not  then  got  hold  of  Judge  Gould's 
"entity." 

The  reporter's  note  to  3  Denio,  is  adverse  to  Judge 
Gould's  construction,  instead  of  favorable,  as  he  seems  to 
have  thought.  The  language  of  the  note  is  :  "  But  whether 
the  rent  in  question  would,  at  common  law,  be  a  rent  ser- 


136 


vice  or  a  rent  charge,  the  provisions  of  1  R.  S.,  748,  §  25, 
copied  from  1  R.  L.,  363,  seem  intended  to  assimilate  a 
rent  reserved  upon  a  conveyance,  in  fee,  to  one  accompa- 
nied by  a  reversion,  so  far  as  concerns  an  action  by  the 
assignee  of  the  lessor." 

It  is  clearly  implied  that  the  assimilation  was  limited. 
The  limitation  named  excludes  the  assimilation  contended 
for  by  the  three  judges,  The  reporter  obviously  did  not 
mean  to  say  that  the  statute  put  the  assignee  of  a  rent 
charge  on  the  same  footing  with  the  assignee  of  a  rent 
service. 

.The  case  in  Carthew,  referred  to  by  Judge  Gould  in  con- 
nection with  this  position,  falls  equally  short  of  sustaining 
it.  It  merely  held  that  the  sale  and  conveyance  of  the 
land  itself,  did  not  carry  with  it  rents  which  had  previously 
accrued.  That  doctrine  has  been  so  familiar  and  so  well 
settled,  as  to  have  been  scarcely  noticed  in  reported  cases, 
or  by  elementary  writers,  within  the  last  two  centuries. 
It  has  no  possible  application  to  Judge  Gould's  doctrine 
of  "  entities." 

We  have  now  noticed  all  the  authorities  which  have  been 
cited  to  support  the  opinions.  We  have  examined  the 
reasoning  underlying  them,  with  one  exception.  There  is 
one  piece  of  logic  left  unexamined.  It  is,  however,  the 
base  of  the  whole.    Remove  it,  and  nothing  remains. 

The  statute  quia  emptores  was  finally  admitted  to  have 
produced  in  England  all  which  was  claimed  for  it,  on  the 
part  of  the  defence.  It  was  finally  admitted  that  the 
defence  would  be  complete  under  that  statute.  It  was  first 
denied,  and  the  denial  labored  through  no  small  part  of 
the  leading  opinion.  It  was  then  admitted,  but  with  a  re- 
luctance manifest  on  almost  every  page.  The  judicial 
trouble  from  that  quarter  was,  that  our  statutes  were  pre- 
cisely like  the  English.  Being  so,  the  English  construction 
and  the  American  should  be  alike.  It  was  hard  to  believe 
that  our  legislature  had  copied  English  Statutes,  with  any 


137 


other  design  than  the  introduction  of  English  laws.  It 
was  scarcely  credible,  that  it  had  been  done  with  the  intent 
to  produce  exactly  the  opposite  results  from  those  worked 
out  in  England.  But  our  three  judges  were  forced  to  that 
conclusion.  English  decisions  were  too  numerous  and  too 
conclusive  in  favor  of  the  defence  to  be  avoided.  The 
actions  could  not  be  maintained  on  English  ground.  It 
could  not  be  denied  that  our  statutes  were  precisely  simi- 
lar to  the  English  ;  but  the  statutes  must  yield  to  reason, 
and  the  force  of  logic  was  to  be  made  to  overcome  their 
force. 

The  reason  why  the  English  laws  would  sustain  the  de- 
fence was  because  English  policy  demanded  the  prosperity 
of  all  parties,  and  particularly  of  the  cultivators  of  the  soil. 
But  English  policy  is  foreign  policy,  and  a  foreign  policy  is 
an  unrighteous  policy,  and  hence  is  not  American.  There- 
fore statutes  enacted  here,  mean  precisely  the  contrary  from 
what  the  same  statutes  mean  in  England.  Says  Judge 
Gould,  **  cessante  ratione,  cessat  et  ipsa  lex"  "  Therefore,  it 
would  seem  entirely  reasonable  to  resort  to  the  old  test  of 
whether  the  covenant  has  been  accompanied  by  a  convey- 
ance. 

There  lies  the  fundamental  reason  of  the  decisions. 
Heretofore  the  law  of  the  state  has  been  supposed  to  de- 
pend upon  the  statutes,  and  upon  usages  and  rules  establish- 
ed by  the  decisions  of  our  courts.  But  that  is  an  idea  of 
foreign  origin.  Now  we  are  to  have  only  that  kind  of  law 
which  is  "  the  perfection  of  reason."  The  statutes  are 
nothing.  The  decisions  of  the  Court  of  Appeals  are  noth- 
ing. The  adjudications  of  the  past  are  nothing.  The  third 
judicial  district  is  a  principality  of  itself.  It  is  a  province 
over  which  its  district  judges  are  supreme.  The  laws 
of  property,  of  liberty  and  of  life,  are  not  to  be  found 
in  the  statute  books,  nor  in  reported  decisions ;  but  in  the 
ever  changing  logic  of  official  incumbents.  ct  Cessante 
ratione,  cessat  et  ipsa  IzxP  comprises  the  law  of  the  district. 
18 


138 


It  is  applied  to  these  cases  in  this  way.  Reason  has  ex- 
cluded the  feudal  system  from  England  because  that  system 
is  barbarous  and  oppressive.  Reason  should  introduce  and 
uphold  it  here,  because  it  is  barbarous  and  oppressive. 
The  discrimination  between  the  two  countries  is  made  to 
depend  upon  the  declared  rule,  that  prosperity  is  the  policy 
of  England,  and  upon  the  implied  rule,  that  prosperity  is 
not  the  policy  of  this  state.  Is  not  that  the  obvious  mean- 
ing of  Judge  Gould's  "  cessante  ratione  "  argument  ?  What 
other  can  there  be  ? 

Hence  Statutes  admitted  to  have  one  construction  in 
England,  are  declared  by  the  three  judges  to  have  a  con- 
trary meaning  here.  When  the  Legislature  proclaimed  all 
the  lands  in  the  State  to  be  allodial,  all  the  lands  at  once 
became  feudal.  When  all  feudal  incidents  were  declared 
abolished,  all  feudal  incidents  were  thereby  introduced. 
The  rule  of  contraries  is  taken  to  be  the  only  safe  rule  of 
statutory  construction.  We  can  certainly  avoid  the  influ- 
ence of  foreign  decisions  by  steering  exactly  in  the  opposi- 
tive  direction. 

It  is  easy  to  perceive  that  the  argument  of  the  opinions 
is  made  to  turn  upon  the  cessante  ratione  point.  Everything 
else  said  and  labored  is  subordinate  thereto,  either  to  sup- 
port or  to  cover  up  the  position. 

It  could  require  no  more  than  a  moderate  share  of  saga- 
city, to  understand  that  it  would  fare  better  covered  up 
than  exposed.  Worldly  wisdom  may  have  suggested,  that 
it  was  best  that  the  decisions  should  be  regarded  only  as 
the  disposition  of  ordinary  questions  of  landlord  and  tenant. 
That  is,  the  impression  should  not  be  removed  from  the 
popular  mind,  that  the  plaintiffs  owned  the  lands  in  ques- 
tion and  the  defendants  had  merely  right  of  possession.  It 
would  not  do,  however,  so  to  decide,  for  the  conflict  with 
the  Court  of  Appeals  would  then  be  so  obvious,  as  to  come 
within  the  popular  understanding,  and  be  condemned.  It 
would  not  answer  again  to  proclaim,  as  had  been  done  in 


139 


the  Bonesteel  case,  that  the  relations  of  landlord  and 
tenant  were  immaterial.  The  popular  mind  was  be- 
coming too  enlightened  to  permit  of  the  repetition  of 
such  an  announcement.  The  intelligence  which  perceives 
the  propriety  of  rent  by  a  tenant  to  the  owner  of  the 
premises,  would  perceive  the  impropriety  of  forcing  rent 
from  the  owner  to  a  stranger. 

A  liberal  use  of  the  words  lease,  lessor,  lessee,  landlord 
and  tenant,  was  sufficient  to  produce  the  impression  that 
the  court  only  passed  upon  the  very  ordinary  relations  of 
landlord  and  tenant.  The  new  invention,  the  third  estate, 
which  they  call  an  i{  entity,"  must  have  been  intended  for 
the  legal  mind,  and  to  divert  attention  from  the  anomaly, 
a  landlord  without  land. 

The  danger,  however,  of  critical  examination  may  have 
been  regarded  as  remote,  by  those  who  caused  the  publica- 
tion of  the  opinions.  It  may  have  been  supposed  that  the 
subject  was  but  little  understood  by  the  profession  gener- 
ally. It  was,  moreover,  so  covered  up  by  the  dust  of  ages, 
that  few  would  undergo  the  necessary  labor  of  a  critical 
examination,  and  those  who  did  examine,  could  not  be 
heard. 


I 


Number  XV. 


Mistaken  idea  that  plaintiff  in  ejectment  need  not  have  an  estate  in  premises 
sought  to  be  recovered  —  Only  reversioner  can  recover  possession  on  expi- 
ration of  the  tenancy  —  Rule  illustrated  in  the  case  of  De  Peyster  agt. 
Michael  —  Van  Rensselaer  made  no  estate  upon  condition,  for  he  made  no 
estate  at  all ;  he  simply  assigned  the  pre-existing  fee  or  tenancy  created 
"by  the  State  —  De  Peyster  case  not  "  Anti-Rent,"  nor,  defence  in  that 
case  instituted  or  conducted  by  "  Anti-Rent  "  party  —  Leaders  of  "  Anti- 
Rent  "  party  did  not  recognize  that  decision,  nor  did  they  publish  or  pro- 
claim it,  an  Anti-Rent  Decision  —  Alike  fatal  to  feudal  rent  and  feudal 
Anti-Rent  —  De  Peyster  case  distasteful  to  leaders  on  both  sides  — 
Landholders,  who  had  entrusted  their  defence  to  political  anti-rentism, 
deserted  by  their  leaders  after  decision  of  De  Peyster  case  —  Alliance  then 
formed  between  feudal  rent  and  leaders  of  feudal  anti-rent  —  Its  efforts  to 
persuade  payments  and  settlements  —  Alliance  led  to  the  new  legal  doc- 
trine of  "  entity,"  whereby  it  is  declared  immaterial  whether  plaintiffs  had 
any  estate  in  the  lands  or  not  —  Unsuccessful  attempts  of  the  alchemists 
to  discover  the  "  entity  "  —  Placed  by  the  Judges  of  the  3d  Judicial  Dis- 
trict in  the  feudal  system  without  feudal  tenures  —  Adopt  the  new 
doctrine  and  no  party  in  the  State  can  tell  whether  he  owns  the  lands  he 
claims,  or  whether  he  does  not  own  them. 

It  seems  to  have  been  a  predominant  idea  of  the  Judges 
who  made  the  decisions  under  review,  that  it  was  not  ne- 
cessary for  a  plaintiff  in  an  action  of  ejectment  to  have  any 
estate  or  interest  in  the  premises  sought,  in  order  to  main- 
tain his  action,  The  plaintiffs  alleged  no  estate  or  interest 
subsisting  in  themselves  at  the  commencement  of  their 
actions.  They  proved  none.  On  the  contrary,  they  alleged 
the  defendants  to  be  the  owners  of  estates  in  fee  and 
proved  their  allegation  to  be  true.  The  Court  so  found. 
It  was  decided  that  the  defendants  were  the  owners  in  fee, 
the  reversion  whereof  was  in  the  State,  not  only  when  the 


141 


suits  were  commenced,  but  up  to  the  very  time  of  the 
judgments,  and  until  the  Court  by  its  judgments  had  trans- 
ferred the  estates  in  fee  from  the  defendants  to  the  plain- 
tiffs, and  ordered  the  possession  to  follow  the  title. 

In  doing  so,  the  Judges  either  overlooked  or  disregard- 
ed the  following  statute  : 

"  No  person  can  recover  in  ejectment  unless  he  has,  at 
the  time  of  commencing  the  action,  a  valid  subsisting  in- 
terest in  the  premises  claimed,  and  a  right  to  recover  the 
same,  or  to  recover  possession  thereof."  2  E,.  S.,  p.  303,  §  3. 

For  that  oversight  or  neglect,  they  were  the  less  excus- 
able, because  the  statute  did  not  change,  but  was  only  de- 
claratory of  the  common  law.  It  has  always  been  a  rule, 
familiar  at  least  to  every  lawyer,  that  when  an  action  of 
ejectment  is  tried,  the  first  thing  which  the  plaintiff  must 
prove,  is  the  right  of  property.  The  second,  the  right  to 
the  possession  of  that  proporty.  The  plaintiff  must  both 
allege  and  prove  that  he  has  an  estate  in  the  premises,  and 
a  right  to  recover  possession  of  that  estate.  The  right  of 
property  in  one  estate  can  give  no  right  to  the  possession 
of  another  estate.  The  remainder-man  cannot  recover 
possession  of  the  life  estate  ;  nor  can  the  reversioner  reco- 
ver the  tenancy.  Before  either  can  maintain  ejectment,  it 
must  be  shown  that  the  life  estate  in  the  one  case,  or  the 
tenancy  in  the  other,  had  ceased  to  exist. 

The  rule  and  the  principles  upon  which  it  is  founded, 
are  too  self-evident  to  admit  of  discussion,  or  require  au- 
thority. There  would  seem  to  be  as  little  difficulty  in  their 
application,  whether  the  parties  involved  were  strangers 
to  each  other,  or  standing  in  the  relations  of  lord  and  ten- 
ant. For  example,  take  the  case  of  De  Peyster  v.  Michael, 
so  often  referred  to,  and  there  can  be  no  difficulty  in  com- 
prehending either  the  rule  or  its  application. 

De  Peyster  brought  ejectment  to  recover  from  Michael 
the  possession  of  a  certain  farm.  The  first  thing  which 
the  plaintiff  was  required  to  show  to  make  out  his  cause 


142 


of  action,  was  a  right  of  property.  To  do  that  he  relied 
upon  a  deed,  in  fee,  of  the  date  of  1785,  from  one  Yan 
Rensselaer  to  one  Snyder.  It  was  in  form  a  lease,  and  so 
far,  different  from  the  deeds  in  the  cases  under  review. 
There  was  a  reservation  of  an  annual  rent,  with  covenants 
to  pay  and  provisions  to  distrain  and  re-enter.  There  was 
also  a  covenant,  on  the  part  of  Snyder,  to  pay  Yan  Rens- 
selaer one  fourth  of  all  moneys  which  might  thereafter 
arise  from  any  sale,  assignment  or  subletting  of  the  pre- 
mises, with  a  condition  of  forfeiture  and  of  re-entry  for 
non-payment. 

It  was  claimed,  on  the  part  of  the  plaintiff,  that  the  deed 
from  Yan  Rensselaer  to  Snyder  was  a  lease,  and  not  a  bar- 
gain and  sale ;  and  that  therefore  the  reversion  or  right 
of  property,  was  left  in  Yan  Rensselaer ;  and  by  interme- 
diate transfers,  had  come  to  the  plaintiff.  It  was  insisted 
that  the  plaintiff  had  thus  made  out  the  first  point  requireds 
to  wit,  the  right  of  property ;  in  other  words,  a  valid  sub- 
sisting interest  in  the  premises  claimed  at  the  commence- 
ment of  the  action. 

To  make  out  the  second  point,  to  wit,  the  right  to  the 
possession  of  the  reversion,  it  was  claimed  that  the  fee  or 
tenancy  granted  to  Snyder  had  come  to  the  defendant 
Michael ;  and  that  while  so  vested  in  him,  the  estate  had 
ceased  to  exist,  by  reason  of  his  neglect  or  refusal  to  ful- 
fill the  conditions  inserted  in  the  deed  from  Yan  Rensselaer 
to  Snyder.  If  that  estate  had  ceased  to  exist,  of  course 
the  reversioner  would  be  entitled  to  the  possession  of  the 
premises. 

The  court  decided  that  the  deed  from  Yan  Rensselaer  to 
Snyder  was  a  deed  of  bargain  and  sale,  and  not  a  deed  of 
lease ;  and  therefore,  that  the  reversion  was  not  left  in  Yan 
Rensselaer,  but  remained  all  the  time  in  the  state.  Hence 
the  plaintiff  failed  to  show  any  estate  or  interest  in  the 
premises,  and  could  not  maintain  his  action. 


143 


Failing  upon  the  first  point,  he  of  course  must  fail  upon 
the  second.  He  could  not  recover  possession  of  the  rever- 
sion in  any  event,  for  that  belonged  to  the  state.  He  could 
not  recover  the  fee  which  Van  Rensselaer  had  owned  and 
sold  to  Snyder,  for  that  belonged  to  Michael.  While  the 
fee  existed,  Michael,  as  its  owner,  could  not  be  deprived  of 
the  possession  of  the  premises. 

It  was  idle  to  talk  of  its  being  an  estate  upon  condition. 
There  was  no  pretence  of  any  conditions  annexed  when 
the  fee  was  created,  or  previous  to  its  alienation  by  Van 
Rensselaer.    Van  Rensselaer  certainly  did  not  make  an 
estate  upon  condition,  for  he  made  no  estate  at  all.  He 
merely  sold  and  assigned  his  estate  or  tenancy.    It  would 
be  a  novel  doctrine  that  a  tenant  could  add  conditions  to 
his  tenancy,  upon  assigning  it,  which  would  not  only  work 
a  forfeiture  of  the  estate,  but  invest  the  assignor  with  the 
right  of  property.    Such  an  idea  was  never  promulgated 
until  the  decisions  under  review  were  made.    It  has  been 
the  uniform  rale,  that  neither  covenants  nor  conditions 
could  be  attached  to  an  estate  or  tenancy,  except  when  it 
was  created,  and  then  only  by  the  party  creating  it.  Act- 
ing upon  that  rule,  the  legislature  of  this  state  made  it 
impossible  for  individuals  to  make  leases  in  fee ;  or  in 
other  words,  to  create  estates  in  fee.    The  sole  purpose 
was  to  prevent  individuals  from  attaching  covenants 
and  conditions  to  estates  or  tenancies  in  fee.  Indi- 
viduals can  sell  and  transfer  such  tenancies,  as  Van  Rens- 
selaer did  to  Snyder ;  but  the  state  alone  can  create  such 
tenancy,  and  be  the  lord  or  reversioner  thereof. 

Without  stopping  further  to  discuss,  in  this  connection, 
the  reason  of  the  rule,  or  the  policy  of  the  legislation 
founded  thereupon,  it  is  enough  to  state  that  the  Court  of 
Appeals  were  mindful  of  both,  and  found  insuperable  ob- 
stacles to  De  Peyster's  recovery,  in  two  substantial  grounds; 
first,  that  he  had  no  estate  or  property  in  the  premises ; 
and  second,  that  the  defendant  had  the  estate  in  fee,  the 


144 


reversion  of  which  was  in  the  state,  and  therefore,  as  to 
every  other  individual,  was  the  absolute  owner  of  the  pre- 
mises. As  between  him  and  the  plaintiff,  the  lands  were 
the  absolute  property  of  the  defendant,  of  which  he  could 
not  be  deprived  without  due  process  of  law.  It  was  not 
given  to  the  court  to  attempt  to  transfer  the  defendant's 
property  to  the  plaintiff.  The  action  was  brought  for  no 
such  purpose.  The  plaintiff  sought  only  to  recover  his 
own ;  and  when  it  was  determined  that  the  premises  were 
not  his,  the  action  was  determined. 

Had  there  been  any  doubt  or  obscurity  about  the  rule 
requiring  a  plaintiff  to  have  an  estate  in  the  premises  in 
order  to  maintain  ejectment,  the  De  Peyster  case  was  suffi- 
ciently definite  and  comprehensive  to  settle  the  question. 
It  was  so  regarded  and  so  treated,  by  the  counsel  for  plain- 
tiffs, in  the  cases  under  review.  It  was  not  for  a  moment 
claimed,  that  the  plaintiffs  could  recover,  unless  they  were 
the  owners  of  the  reversion.  It  was  not  pretended,  that 
they  could  recover  possession  of  the  defendant's  property, 
or  that  the  court  could  transfer  that  property  to  them. 
That  notion  originated  with  the  court  ;  and  for  the  first 
time  in  the  history  of  jurisprudence,  parties  were  allowed 
to  recover  possession  of  lands,  not  because  they  owned 
them,  but  because  they  did  not  own  them. 

It  is  true  that  the  De  Peyster  case  was  not  "  anti-rent," 
nor  was  the  defence  in  that  case  instituted  or  conducted  by 
the  "  anti-rent  party."  It  is  true  that  that  decision  was  not 
recognised  by  the  prominent  leaders  of  that  party  ;  and 
there  is  reason  to  believe  it  was  not  acceptible  to  them. 
They  neither  published  nor  proclaimed  it  as  an  "  anti-rent" 
decision,  or  otherwise.  Their  immediate  opponents  pur- 
sued the  same  course  in  regard  to  it.  Purposely  disre- 
garded by  the  two  parties  most  immediately  interested, 
the  public  mind  was  allowed  to  remain  ignorant  of  the  de- 
cision. Alike  fatal  to  both  feudal  rent  and  feudal  anti-rent, 
it  was  alike  distasteful  to  the  partisans  of  each.  The  leaders 


145 


on  both  sides  had  enough  sagacity  to  perceive  that  a  deci- 
sion, unanimously  made  by  the  highest  court  in  the  State, 
holding  feudal  tenures  not  to  exist,  spoiled  alike  the  future 
of  both  and  stultified  their  past.  There  had  then  been 
near  ten  years  of  fierce  agitation  between  feudal  rent,  on 
the  one  side,  and  feudal  anti-rent  on  the  other.  The  one 
party  fought  under  the  name  of  M  law  and  order,"  and  the 
other,  that  of  "  anti-rent."  The  direct  object  of  the  latter, 
was  to  show  that  the  rent  claimants  had  no  estate  in  the 
lands.  The  ulterior  object,  was  to  defeat  the  collection  of 
their  demands  of  rent.  A  suit  was  brought  in  the  name  of 
the  State,  instituted  by  special  legislative  sanction,  to  re- 
cover the  lands  from  the  rent  claimants,  and  thereby  to 
determine  that  they  were  not  the  reversioners  or  owners  of 
the  lands.  This  was  an  anti-rent  movement.  The  theory 
announced  by  its  leaders  was,  that  such  suit  once  determined 
in  favor  of  the  State,  the  State  would  make  the  occupants 
tenants  in  fee,  the  reversion  whereof  would  be  in  the  State 
and  not  in  the  rent  claimants.  Then,  they  would  be  on  an 
equal  footing  with  all  other  tenants  in  fee,  and  consequently, 
not  subject  to  ike  imposition  of  the  covenants  and  condi- 
tions in  question. 

The  attack  thus  made  was  vigorously  resisted.  It  was 
agreed  on  all  hands,  that  if  the  State  could  be  made  the  re- 
versioner of  the  tenancies  in  fee  in  question,  instead  of  the 
parties  who  were  claiming,  the  covenants  and  conditions 
could  not  be  enforced.  No  one  then  pretended,  or  even 
suggested,  that  it  was  immaterial  where  the  reversion  was 
vested.  On  the  contrary,  the  point  of  the  reversion  was 
considered  vital. 

In  the  midst  of  that  contest,  so  advised  and  so  carried  on, 
the  l)e  Peyster  case  was  decided  by  the  Court  of  Appeals. 
Upon  all  deeds  in  fee  made  after  1776,  whether  they  were 
alienations  or  in  the  form  of  leases,  the  reversion  was  held 
to  be  in  the  State,  and  those  holding  under  such  deeds  were 
declared  to  be  the  tenants  in  fee  of  the  State,  and  free  from 
19 


146 


the  covenants  and  conditions  which  individual  grantors  had 
attempted  to  fasten  upon  the  estates  or  tenancies  which 
they  held. 

The  land-owners  who  had  been  induced  to  entrust  their 
interests  to  political  anti-rentism,  were  thus  placed  without 
aid  from  that  quarter,  in  the  very  relations  which  they  had 
been  advised  to  seek.  The  trouble  and  excitement  to  which 
they  had  been  subjected,  were  left  by  that  decision  without 
foundation.  Both  their  adversaries  and  their  friends  had 
mistaken  the  law,  and  consequently,  misunderstood  the 
rights  of  the  parties.  That  mistake  was  corrected  and  the 
conflict  should  have  been  at  rest  forever.  It  was  legiti- 
mately closed. 

Those  times  are  now  referred  to,  not  for  the  purpose  of 
writing  their  history,  but  simply  as  authority,  practically 
sanctioned  by  all  parties,  and  particularly,  by  prominent 
leaders  of  the  "  Anti-Rent"  party,  that  the  whole  point  of 
the  conflict  was  comprised  in  the  one  question,  whether 
those  who  claimed  rents  as  feudal  lords,  were  the  owners  of 
the  lands,  or,  in  other  words,  the  reversioners  of  the  exist- 
ing estates  in  fee. 

The  propriety  of  this  reference  is  apparent.  The  rent 
claimants  have  published  the  decisions  under  review,  as 
"  Anti-Rent  Decisions."  They  have  demanded  for  them  an 
unusual  share  of  respect  as  legal  authority,  because  they  are 
proclaimed  to  have  come  from  an  "  Anti-Rent"  source.  It 
may  have  seemed  to  them  a  convenient  way  of  announcing 
the  alliance  between  "  feudal  rent"  and  "  anti-rent,"  by  aid 
of  which  claimants  of  the  former  have  for  years  been  prac- 
ticing the  exaction  of  demands,  which  the  law  had  refused 
to  sanction.  It  was  in  effect  an  official  proclamation,  that 
the  De  Peyster  case  was  not  regarded  as  law,  and  defences, 
based  thereupon,  would  receive  no  countenance  from  an 
"  anti-rent"  quarter. 

That  defences  founded  upon  the  De  Peyster  case,  have 
never  met  with  favor  from  the  leaders  of  the  anti-rent 


M 


147 

party,  is  admitted.  The  rent  claimants  need  publish  no 
more  "  anti-rent  decisions/'  in  order  to  convince  the  world 
of  that  fact.  The  only  serious  opposition  which  such  de- 
fences have  encountered,  has  come  from  sources  proclaimed, 
by  the  plaintiffs,  to  be  "  anti-rent."  Arguments  predicated 
upon  no  points  or  suggestions  of  plaintiffs'  counsel,  are  the 
only  ones  presented  to  the  public  to  sustain  the  decisions 
made.  The  doctrine  that  a  landlord  can  exist  without 
lands,  as  well  as  with,  is  of  <£  anti-rent'7  origin.  In  short, 
ever  since  the  decision  of  the  De  Peyster  case,  feudal  land- 
lordism has  been  upheld  only  by  the  zealous  interposition 
and  active  exertions  of  parties,  who  had  been  more  distin- 
guished as  partisan  "  anti-renters"  than  in  any  other  way. 

It  is  no  part  of  the  purpose  of  this  review  to  intermed- 
dle with  alliances,  or  be  over  curious  about  the  manner  or 
means  of  their  formation  or  existence.  But  when  claim- 
ants of  feudal  rents  make  a  point,  as  they  have  made,  that 
the  opinions  upon  which  they  rely,  are  "  anti-rent,"  and 
therefore  controlling  authority,  the  people  have  a  right  to 
be  informed,  why  "  anti-rent "  has  heretofore  made  so  much 
effort  to  prove  that  such  claimants  had  no  estate  in  the 
lands,  if  it  *be  true,  as  now  declared,  that  it  is  wholly  im- 
material whether  they  have  or  have  not  such  estate.  Why 
was  the  State  suit  brought,  and  why  defended  1  Since  that 
was  abandoned,  why  have  the  Legislature  been  asked,  at 
every  session,  to  provide  by  special  enactment  that  the 
Stockbridge  Indians  might  sue  to  recover  the  lands  ?  Why 
was  the  recent  Indian  suit  brought,  and  why  did  certain 
"  rent  "  men  and  certain  "  anti-rent"  men  journey  together 
to  Lake  Superior,  with  a  commission  to  examine  certain 
Indians,  under  pretence  of  proving  that  the  rent  claimants 
did  not  own  the  lands  ?  Why,  under  the  same  distinguished 
leaders,  was  the  Legislature  frequently  importuned  to  pro- 
vide an  enabling  act  allowing  parties  to  show  in  defence, 
that  the  plaintiffs  had  no  estate  or  title  in  the  lands,  upon 
which  they  claimed  rent  ?    When  it  has  been  decided  by 


148 


the  highest  court  in  the  State,  that  such  plaintiffs  have  no 
estate  in  the  premises,  and,  therefore,  cannot  maintain  their 
action,  why  then,  for  the  first  time,  do  the  same  "  anti- 
rent  "  jurists  declare  that  the  want  of  title  or  estate  in  the 
claimants  is  no  defence,  on  the  part  of  those  who  are  ad- 
judged to  own  the  lands  ? 

The  farmers  of  Albany  and  Rensselaer  counties,  who  are 
called  upon  to  give  up  their  property,  in  obedience  to  de- 
cisions because  they  are  "  anti-rent "  and  made  by  "  anti- 
rent"  jurists,  and  where  that  is  all  which  can  be  urged  in 
their  support,  in  the  way  of  authority  or  upon  principle, 
have  a  right  to  put  such  questions,  under  such  circumstan- 
ces, and  to  demand  an  answer.  The  opinions  published, 
fail  to  account  for  the  sudden  changes  of  u  anti-rent "  ideas 
of  law,  or  how  and  by  what  means  such  changes  have  been 
wrought.  They  are  as  silent  upon  that  subject  as  upon 
the  points  and  authority  of  counsel  upon  the  argument. 

It  may  be  difficult  for  the  reader  to  understand  fully  the 
unusual  course  pursued  in  the  decisions  under  review, 
without  a  more  summary  statement  than  has  yet  been 
made.  It  requires  to  be  seen,  as  nearly  at  one  glance  as  it 
is  possible  to  present  it,  in  order  to  be  realized. 

The  contest  which  gave  origin  and  name  to  the  "Anti- 
Rent"  party  began  some  twenty  years  ago.  Certain  par- 
ties claimed  to  be  the  owners  of  large  tracts  of  territory, 
located  in  different  counties,  and,  as  such  owners,  demanded 
rents  of  the  occupants.  It  was  a  fact  not  disputed  that 
the  occupants  in  most  cases  were  the  owners  of  estates  in 
fee.  Those  who  claimed  rents  nevertheless  claimed  to  be 
the  owners  or  lords  of  the  soil,  and  thereby  the  reversion- 
ers of  the  tenancies  in  fee,  and  as  such  entitled  to  rents. 

On  the  side  of  the  claimants,  it  was  contended,  that  the 
deeds,  though  in  fee  and  made  after  1776,  did  not  pass  the 
right  of  property,  but  only  created  and  vested  in  the  gran- 
tee a  tenancy,  the  reversion  of  which  was  left  in  the  gran- 
tor ;  and  that,  by  immediate  transfers,  the  reversion  or 


149 


right  of  property  had  come  to  them  ;  and  along  with  it,  the 
covenants  and  conditions  as  incidents.  Their  theory  was, 
that  the  feudal  law  was  in  force  when  the  deeds  were  exe- 
cuted, and  consequently  individuals  could  create  estates  in 
fee,  as  well  as  for  life  or  years. 

They  met  with  opposition.  One  class  of  opponents  did 
not  deny  their  assumptions  as  to  the  feudal  law,  and  the 
consequences  claimed  to  follow.  They  sought  to  defend  by 
showing  that  the  grantors  never  had  title,  and  that  conse- 
quently the  plaintiffs  had  no  title  or  estate.  As  this  was 
only  an  indirect  defence,  they  opposed  the  collection  of 
rents  by  force  and  in  disguise.  This  was  the  celebrated 
"  anti-rent "  party  which  for  a  time  was  strong  enough  to 
make  Governors  and  Judges.  Its  leaders  were  in  that  way 
successful.  The  party  never  met  with  any  other  permanent 
success. 

Another  class  of  opponents,  opposed  the  demands  of  the 
assumed  feudal  lords  upon  the  ground  that  the  feudal  law 
was  not  in  force,  when  the  deeds  were  executed.  It  was 
contended,  that  the  statute  quia  emptores  was  made  a  part  of 
the  laws  of  the  State  from  its  inception.  If  that  were  so, 
it  followed  of  course,  that  the  deeds  did  not  create  estates 
or  tenancies  in  fee,  but  operated  only  as  assignments  or 
alienations  of  the  pre-existing  fees  of  the  grantors.  The 
latter,  after  executing  the  deeds  had  no  reversion  or  estate 
left,  and  the  plaintiffs  must  be  equally  destitute  in  that  re- 
spect, and  could  not  maintain  their  actions. 

This  class  of  opponents  never  aspired  to  the  dignity  of  a 
party,  political  or  otherwise.  They  found  themselves 
antagonistic  to  both  the  "  rent  "and  the  "  anti-rent  v  parties. 
But  they  were'  successful.  They  were  right  in  their  legal 
position,  and  so  declared  to  be  by  the  Court  of  Appeals. 
The  rent  claimants  made  no  pretence  of  authority  to  recover, 
except  upon  the  ground  that  they  were  the  owners  of  the 
lands,  or  in  other  words,  the  reversioners  of  the  existing 
estates  in  fee.    The  decision  that  they  were  not  such 


150 


owners  or  reversioners,  they  admitted  fatal  to  their  rights 
of  recovery.  Thus  defeated,  they  had  recourse  to  their  old 
enemies,  the  "  anti-renters."  The  leaders  of  that  party  held 
at  the  time  controlling*  power  over  their  followers. 

Some  of  those  leaders  at  once  became  active  partisans  in 
endeavoring  to  persuade  payments  and  settlements.  Cir- 
cumstances favored  their  efforts.  The  people  were  igno- 
rant of  the  law  and  credulous.  They  listened  to  statements 
denying  that  the  Court  of  Appeals  had  made  a  decision, 
holding  the  rent  claimants  to  have  no  estate  or  reversion. 
They  were  told  by  their  anti-rent  leaders,  that  it  was  only 
.a  story  got  up  to  deceive  them.  For  a  time,  the  new  alli- 
ance was  partially  successful.  But  like  everything  else 
founded  in  fraud  and  carried  on  by  deception,  it  came  to  a 
period  before  its  purpose  was  fully  accomplished.  "  Anti- 
rent  "  was  forced  to  meet  the  question  where  it  dare  not 
repeat  its  daily  falsehoods.  This  led  to  a  new  legal  doc- 
trine, that  it  was  immaterial  whether  the  plaintiffs  had  any 
estate  in  the  lands  or  not.  The  defendants  were  charged 
with  fallacy  in  claiming  the  contrary,  and,  for  the  first  time 
in  this  country  or  in  any  other,  it  was  so  decided.  The 
opinions  under  review  were  supplemental  efforts  in  support 
of  the  same  doctrine.  The  reader  can  now  understand  why 
the  plaintiffs  have  published  them  under  the  heading  of 
"  anti-rent  decisions." 

The  new  estate,  which,  in  these  opinions,  is  called  "  an 
entity,"  perhaps,  deserves  more  particular  notice  than  it 
has  yet  received.  As  the  estate  and  the  name  arc  both  new, 
it  is  a  little  remarkable  that  the  authors  of  those  opinions 
have  neither  described  the  one,  nor  defined  the  other.  It 
is  the  more  so,  because  there  is  nothing  in  the  law  books 
casting  light  upon  either.  It  is  perhaps  the  first  time  the 
word  "  entity  "  has  been  used  to  designate  any  particular 
thing.  There  are  stories,  that  alchemists  once  tried  to  find 
a  thing  which  they  called  "  an  entity."  They  supposed  it 
to  have  existence,  but  without  the  qualities  of  existence. 


151 


It  was  to  have  neither  length  nor  breadth,  nor  depth  nor 
altitude,  nor  be  perceptible  to  any  of  the  senses.  Such  a 
discovery  seems  never  to  have  been  made  until  proclaimed 
in  the  opinions  under  review. 

The  discovery  itself  is  sufficiently  remarkable,  but  the 
place  where  they  claim  to  have  found  it,  is,  if  possible, 
more  so.  They  say  it  is  the  foundation  of  feudal  relations 
without  feudal  tenures.  Their  theory  is,  that  the  New 
York  Legislature,  in  providing  against  feudal  tenures,  did 
not  mean  to  prevent,  but  to  facilitate  the  creation  of  feudal 
relations  ;  and  therefore,  they  removed  the  old  foundation, 
known  as  the  reversion,  and  substituted  the  new  one,  "  an 
entity." 

In  their  efforts  to  work  out  that  discovery,  they  display- 
ed an  ignorance  of  the  statutes  as  profound  as  their  ignor- 
ance of  the  common  law,  which  characterizes  some  portions 
of  their  argument. 

The  question  between  counsel  was,  whether  the  deeds 
upon  which  the  actions  were  founded,  were  evidence 
of  the  letting  of  lands,  or  of  the  assignment  and  trans- 
fer of  estates  apd  tenancies.  The  court  decided  with 
the  defendants ;  that  they  bore  evidence  of  bargain  and 
sale  only ;  of  transfer  and  assignment. 

Then  they  undertake  to  make  out  that  point  immaterial, 
by  holding  that  covenants  and  conditions  can  be  annexed, 
as  well  by  a  vendor  when  he  sells  his  property,  as  by  a  les- 
sor when  he  leases  it ;  and  that,  therefore,  every  vendee  of 
lands  becomes  liable  to  pay  and  fulfill  the  purchase  money 
covenants  and  conditions  of  all  previous  vendees  of  the 
same  premises*  They  assume  that  such  was  the  feudal 
law,  until  changed  by  the  statute  quia  emptor es,  and  so  as- 
suming, direct  all  their  energies  to  an  attack  upon  that 
law. 

It  was  not  the  statute  which  stood  in  the  way  of  that 
doctrine.  It  is  a  rule  of  the  feudal  or  common  law,  as  old 
as  that  law  itself,  that  no  tenant,  whether  of  an  estate  in 


152 


fee  or  of  a  less  quantity,  can  attach  covenants  or  conditions 
to  his  estate  upon  the  alienation  or  assignment  thereof. 
Neither  the  statute  quia  emptores  or  any  other  statute,  in 
England  or  in  this  country,  has  ever  attempted  to  change 
or  modify  that  rule.  It  lies  at  the  foundation  of  all  our 
real  property. 

Change  that  doctrine  and  adopt  the  positions  of  the 
opinions  under  review,  and  no  party  in  the  state  can  tell 
whether  he  is  the  owner,  or  whether  he  is  not  the  owner,  of 
the  lands  be  claims. 


# 


